New Delhi: United Nations’ special rapporteur on freedom of association and peaceful assembly, Maina Kiai, submitted a critical legal analysis of the Foreign Contribution (Regulation) Act, 2010, (FCRA) to the government of India on 20 April, to which the government is yet to respond. The submission followed a drive to restrict foreign funding to not-for-profit associations by the Indian government, which last year cancelled the registration of 8,975 organizations for non-submission of returns for the period 2009-10 to 2011-12.
Kiai has argued that the Act and its rules—which regulate foreign funding to not-for-profit associations, politicians and journalists—are in violation of international laws and standards regarding freedom of association.
As the UN rapporteur for the last five years, he has been engaging with governments across the globe regarding the right to freedom of association and assembly. In an email interview from Nairobi, Kenya, he shared his thoughts on the growing challenges in this field. Edited excerpts:
What prompted you to look into FCRA?
The issue of governments restricting civil society’s ability to access foreign resources has been a touchstone issue for my mandate. This specific intervention grew out of the mandate and requests received to file an expert declaration in some pending cases in which not-for-profit associations face problems because of the FCRA legislation. That ultimately didn’t work out for a variety of reasons, but we still wanted to present our legal analysis to the government, because we feel the issue is extremely important.
We learnt that currently (2016) FCRA re-accreditation is being processed for many associations. There is quite a lot of activity and debate around this issue in India.
India is also very important in the UN context. It is the world’s biggest democracy, and has a massive and vibrant civil society. India is seen as a leader for other countries, and unfortunately in this area it is leading in the wrong direction.
One of your key observations is that FCRA uses terms such as ‘political objectives’, ‘political activities’ and ‘political interests’ in an ‘arbitrary fashion’. Why is that a problem? And how can these be better defined?
The broad character of these notions and the subjective interpretation is indeed why the entire FCRA regime is suspect. They can lead to large groups of associations being targeted or arbitrary decisions in determining which associations have violated the Act.
Only very specific limitations to the freedom of association are accepted under international law; for example, an association that propagates racial hatred, but that is much more narrowly defined than many of the definitions included in the FCRA.
Everything is potentially political. If an NGO (non-governmental organization) calls for an unjust law to be repealed, that can be seen as political. If a business builds a dam that will displace thousands of people and change the ecosystem, that’s political as well. Where do we stop in defining political?
But why is being “political" so bad in a democracy? The opposite of political is apolitical, which implies people being disengaged pawns of the people who have the privilege of being political.
The better approach in a democracy is to encourage a broad marketplace of ideas, where everyone can have their say. This is what assembly and association rights are all about—giving people a platform to have their say.
A deeper issue here is the issue of globalization and what it means—or what we want it to mean. Capital, businesses and trade move across international borders with increasing ease. Why shouldn’t it be the same when money moves across borders for civil society? There’s a clear double standard. And it’s not an argument to say that businesses are “different". Business is an intensely political sector, and the ties between businesses and politicians are much deeper than the ties between civil society and politicians.
Is the Indian law limiting foreign funding in certain areas a very unique law? Don’t other countries discourage foreign funding of political activities as well?
It is not unique—the global trend is towards more laws of this type, targeting civil society for so-called “political" activities. But broad anti-civil society laws like this are more common in countries which have traditionally had more repressive political systems.
It is more common to have restrictions on foreign funding to political parties themselves, defined as those directly vying for power. These are less problematic in my view, because the focus is on politicians, potential politicians, party officials and so on. Political parties are designed to get people into government, into power.
Of course I believe that sectoral equity is important when it comes to regulations of this kind of political activity. For example, some governments restrict non-profits’ ability to donate to political parties, but have fewer restrictions on businesses’ ability to do so. That doesn’t make sense to me.
Are there no restrictions for the receipt and use of foreign funding in developed and donor nations such as the UK or the US?
No—at least not with the same breadth, targeting general civil society organizations, requiring advance government permission to receive funds, and so on. The United States does have the Foreign Agents Registration Act, but this applies only to people or organizations hired to represent foreign interests before the US government. And incidentally, I have reservations about this law because it was reportedly used by Russia as a model for its “foreign agents" law, which is atrocious.
China, Bangladesh, Pakistan, some African nations like Nigeria and Kenya, and countries in South-East Asia like Malaysia have been repeatedly expressing distrust of foreign-funded organizations… Do you intend to review or have you reviewed the provisions of these countries as well?
As noted above, this is a worldwide phenomenon and associations in India clearly suffer from this legislation. We have addressed some of the laws in other countries in other ways: in statements, official communications to governments, inclusion in reports, discussion in our project with the Community of Democracies, etc. Many of the arguments of the legal analysis of the FCRA in India will be similar for the other pieces of legislation and we hope that lawyers, associations and activists around the globe will feel empowered to use them when dialoguing with their governments or pleading a case in court.
China has a new law on the Management of Foreign Non-Governmental Organizations’ Activities, which is to come into force in April 2017...
I am very concerned about its impact. I even issued a statement on the law in early May.
There is a feeling in India that these observations cannot be applied here because we are a democracy and this law was created by the legislature. What would be your response to these be?
There are three possible approaches. The first, which can be done tomorrow, is to be more permissive in interpretation of the law. The second, which would take legislative action, is to repeal the law. The third is for a domestic court to find the law unconstitutional or in violation of international law.
Even a democracy and its legislative institutions have to respect the international obligations of the state.
If the FCRA violates the International Covenant on Civil and Political Rights (ICCPR) of which India is a signatory, what can the UN ask India to do?
There is no true enforcement mechanism for the ICCPR. And the enforcement mechanism that it does have—the optional protocol allowing individual complaints to the Human Rights Committee—has not been ratified by India. However, a domestic court could certainly find the law in violation of international law.
How hard is it in today’s environment to override concerns like ‘national security’ and ‘threat to national interest’, some of which could be legitimate?
The threat of terrorism and violent extremism is certainly raised by governments as a rationale for restricting civic space. But in most cases, I think it’s a red herring—used as a convenient excuse to crack down on dissent.
There are large numbers of angry, dissatisfied people in the world today—and for good reason. Denying them space for peaceful, legal and constructive engagement in their societies does not make their feelings of anger go away. It simply pushes these feelings underground and out of view, where they can fester and turn violent. Extremism thrives in such environments, because it is the only option left. Countries which do not allow peaceful dissent are more likely to face violent dissent.
This is what we have seen in Syria, Libya and elsewhere.
States that claim to be fighting terrorism yet at the same time restrict civil society are playing with fire. The existence of a robust civil society—and the respect for human rights in general—is critical in combatting extremism, and in channelling dissent and frustrations in a legitimate way through the system.
I’m disturbed when some governments say that assembly and association rights are dangerous, or that they cause chaos. This view is backwards: It is the suppression of these rights that is dangerous. They’re actually among the best antidotes we have against chaos.
Why is foreign funding of the not-for-profit sector being viewed as a threat only in the developing nations/emerging economies?
It is hard to generalize because each situation is somewhat unique. But I think that many governments have a fear of an informed and engaged populace, particularly when that populace includes large numbers of people who are politically ignored. In some cases, foreign funding is used to organize and engage such people. It’s always threatening to power when people demand to be taken into account.
Let me emphasize again, though, that restrictions on foreign funding are just one piece of this puzzle of “closing civic space". This obliquely termed phenomenon is NGO jargon for shutting people out of democracy, and it is happening all over the world in a variety of ways—restrictive NGO laws, crackdowns on protesters, harassment of activists, restrictions on foreign funding and much more.
Why is foreign funding, even in small parts, important to protect freedom of association?
It starts with globalization and equity between the business and civil society sectors. Governments, for the most part, wouldn’t dream of preventing businesses from getting overseas investments.
Even India has extensively liberalized its foreign direct investment restrictions; yet they’ve gone the opposite direction on civil society investment. This makes the restrictions on civil society suspect from the start.
Foreign funding is also important for other reasons as well. In some places, there may not be an extensively developed culture of philanthropy. In others, there can be extensive links between wealth and the ruling party or its policies, meaning there will be less funding available to organizations who, for example, want to criticize government policies.
And let me be clear, we should encourage criticism of government policies. This is how societies move forward and it is a fundamental principle of democracy.
I’m certain that some governments would twist my last point in the wrong way and suggest I’m saying that we need foreign money to overthrow “bad" governments. This is not at all my point. Healthy democracies need vigorous public debate, room for competing ideas, and—yes—disagreement. I see public disagreement as a sign of political stability, not a threat.