NGOs in China

Saturday, January 30, 2016

The End of the Road for Guo Jianmei's Zhongze Women's Legal Counseling and Service Center?

The New York Times (see the text below) has reported that Guo Jianmei's Zhongze Women's Legal Counseling and Service Center (formerly the Beijing University Women's Law Studies and Legal Aid Center), has been ordered to close. It's not clear whether the law firm she established in 2009, Qianqian, will also close.

In March 2010, the center lost its Beijing University affiliation that it had enjoyed for more than 10 years. At that time, many people thought that her center was being closed down, but Jianmei just moved her office to a new location and re-registered the center under its current name, taking out any reference to Beijing University. It's unclear whether the center will have a life beyond Zhongze, and where Jianmei and her staff will go from here.

Here's the blog post I wrote back in 2010 that includes a long public statement by Jianmei and her staff about the center's work and accomplishments. They are worth reading again to understand why the closing of this center will be a loss for advocates of women's rights in China.

China Is Said to Force Closing of Women’s Legal Aid Center

BEIJING — The Chinese authorities have ordered a leading women’s legal aid center in Beijing to shut down operations, the center’s founder said on Friday, another sign of a continuing crackdown on civil society.

As word spread of the closing of the Beijing Zhongze Women’s Legal Counseling and Service Center, many women’s rights advocates expressed shock. The center was highly symbolic for having been born of the United Nations Fourth World Conference on Women in Beijing in 1995, a moment when China, struggling to be accepted internationally after the 1989 military suppression of pro-democracy demonstrations around Tiananmen Square, loosened controls on civil society activities.

Employees at the center, which is led by Guo Jianmei, a charismatic lawyer, were huddled on Friday afternoon to discuss the order. “We have a lot of things to deal with,” Ms. Guo said.


No reason was given for the order. A notice on the center’s website read: “Beijing Zhongze Women’s Legal Counseling Service Center (formerly the Center for Women’s Law Studies and Legal Services of Peking University) will take a rest from Feb. 1, 2016. Thank you everyone for your attention and constant support for the center in the past!”

Ms. Guo’s center was first set up in late 1995 at Peking University, her alma mater. Its name changed after the university shut it down in 2010 and Ms. Guo moved it to an apartment in north Beijing.


“It looks like they are trying to crush all people with any influence,” said a longtime women’s rights campaigner who requested anonymity while discussing a politically sensitive matter. “As far as well-known people go today, it’s ‘kill one and scare 100’ to make sure no one else tries to do anything. Controls on thought and speech are intensifying. The repression of lawyers and NGOs is growing.”

The move comes just four months after China showcased its achievements on women’s rights at festivities at the United Nations in New York honoring the 20th anniversary of the Beijing conference that were opened by the Chinese president, Xi Jinping. His wife, Peng Liyuan, also attended the event, delivering a speech in English on women’s rights that attracted considerable attention.


Gender equality is official Chinese government policy. In September, the State Council, China’s cabinet, issued a white paper titled “Gender Equality and Women’s Development in China,” which highlighted the importance of “effectively mobilizing social resources” as part of “China’s national mechanism for promoting the status of women.”

The closing of the center signifies a tightening of the restrictions on civil society because its work helping women in domestic violence, child custody, land rights and employment disputes had long been tolerated by the government, said Maya Wang, a researcher on China with the advocacy group Human Rights Watch in Hong Kong.

“That it is possible for her to be a target for closure is a significant indication of the government’s crackdown on civil society,” Ms. Wang said.

“She’s not a lawyer in a law firm that was taking very sensitive cases,” Ms. Wang said, referring to a crackdown on the legal profession that has led to the detention of about 250 lawyers, legal workers and activists since last summer.

Friday, January 8, 2016

The Latest Updates on Civil Society-Related NPC Legislation

Last month, the 18th Session of the NPC Standing Committee met and approved two laws that are particularly relevant to civil society. One is the Counterterrorism Law (反恐怖主义法, sometimes translated as the Anti-Terrorism or Counterespionage Law) which will go into effect on January 1, 2016, and the other is the Anti-Domestic Violence Law (反家庭暴力法, also translated as the Domestic Violence Law) which will go into effect on March 1, 2016.

The Counterterrorism Law

The Counterterrorism Law is part of a slew of security-related legislation (see Table 1) that appeared in 2014-15 and reflects the Xi Jinping administration’s effort to take a comprehensive approach to tackling terrorism and other perceived national security threats.  These laws have been criticized by foreign media, business and civil society groups and governments for giving Chinese authorities greater powers to restrict and control the activities of non-state actors.

The Counterterrorism Law was controversial when the first draft was issued for public comment in November of 2014 because it defined terrorism in vague and open-ended terms, and required foreign telecommunications and technology companies to provide their encryption keys to Chinese authorities, install security “backdoors” that would give those authorities surveillance access, and keep their servers and user data in China.  Due to pushback by foreign technology and internet companies and foreign leaders such as U.S. President Obama, the third reading was delayed and further revisions made to the draft law. The final draft removed language defining terrorism as “thought”, and took out the requirement for companies to provide encryption keys and keep their servers and user data in China, although it still requires companies to provide assistance with encryption information upon the request of law enforcement authorities.

The Counterterrorism Law’s legislative journey may provide some insights into the prospects for the Overseas NGO Management Draft Law (境外非政府组织管理法,also translated as the Foreign NGO Management Law) which had a similar rocky reception among foreign civil society and business groups and governments and has also been held up.  The Counterterrorism Law’s passage in somewhat revised form showed that public comments and concerns were taken into account but that demands for more significant revisions were trumped by national security considerations.  If that is any indication, then the more likely scenario for the Overseas NGO Law is that it will pass in early 2016 with some of the more controversial provisions removed, but with the basic regulatory structure intact. The less likely scenario, although the one preferred by this author, is that more significant revisions are made, such as: 1) removing the requirement for the NGO to get approval from a professional supervisory agency (PSA) before registering; 2) or failing that, to expand qualified PSAs to include organizations other than government bodies; 3) removing the requirement for Overseas NGOs that want to work in China but not set up a representative office to obtain a one-year temporary permit; and of course 4) changing the registration body from Public Security back to Civil Affairs.


Table 1: Timetable of security-related NPC legislation

1st reading
2nd reading
3rd reading
Approved
Counterterrorism Law
November 3, 2014
(public comments)
March, 2015
??
Dec 24, 2015
National Security Law
December 2014 (internal)
May 7, 2015 (public comments)
July 1, 2015
July 1, 2015
Overseas NGO Law
December 22, 2014
(internal)
May 5, 2015 (public comments)
 N/A
 N/A
Cybersecurity Law
July 6, 2015 (public comment)
 N/A
N/A
N/A

  
The Anti-Domestic Violence Law

The Anti-Domestic Violence Law has been years in the making and its passage on December 27, 2015 now makes an issue that was long viewed as a private matter a responsibility of the state.  The Law is also one of the few pieces of legislation where we can see the imprint of civil society groups whose input led to improvements in the final draft which expanded the definition of domestic violence to include both physical and psychological violence, and violence between “people living together”, and not just married couples. Critics though point out that the law does not include sexual violence and is unclear on whether “people living together” include people in homosexual relationships. Civil society groups will of course also play an important part in ensuring that the Law is implemented, enforced and improved upon.

What’s Been Going On with the Charity Law?

One final legislative update is that the Charity Law (慈善法)had its second reading at the December session of the NPC Standing Committee, after the first draft was released for public comments at the end of October (see Table 2). As my November 29 post discussed, this draft law should be viewed favorably for creating a more enabling environment for charity organizations.  The second draft appears to have made further beneficial revisions, in particular by removing the geographical restrictions on online fundraising, and being more specific about tax benefits for charitable organizations.


Table 2: Timetable of other civil society-related NPC legislation

1st reading
2nd reading
3rd reading
Approved
Anti-Domestic Violence Law
November 25, 2014 (State Council, public comments)
August 2015 (NPC, public comments)

October 2015
December 27, 2015
Charity Law
October 2015 (public comments)
December 2015
 N/A
 N/A


Monday, January 4, 2016

A 2016 New Year's Message from China's Labor Rights Defenders

Below I repost the Chinese original and the English translation of an important and eloquent New Year's Message from some of China's labor rights defenders at a time when those defenders are coming under a fierce, high-level attack that has resulted in dozens of labor activists monitored, interrogated and detained. To date, the seven activists mentioned below are still in detention and have not been allowed to see their lawyers. An earlier draft of this translation was posted on China Change. Here I post the final version of that translation.


In a Vast and Frozen Land, Spring Arrives in All Its Glorious Color: A 2016 New Year's Message from China's Labor Rights Defenders

Dear Fellow Workers and Compatriots: Happy New Year!

Towards the end of 2015, China’s labor rights defenders experienced an unprecedented attack. A group of activists who have dedicated years to defending the rights and interests of workers were detained, monitored and interrogated by the police. It could have been a moment for fear and paranoia to set in. But labor activists and people from other walks of life responded quickly by drafting a petition to the Communist Party Central Committee, National People's Congress and State Council. The petition described in no uncertain terms the severe and widespread violations of workers' rights and interests over the last few decades, and the inevitable emergence of independent labor NGOs and worker centers and their valuable contribution to the protection of labor rights and social justice, and demanded the release of the detained activists. In less than two weeks, over 490 people added their names to this petition, and over 60 Chinese lawyers joined a legal aid team. This response was followed by petitions, appeals and demonstrations by over 200 organizations and thousands of individuals from the international labor and academic community in over 40 countries condemning the crackdown and expressing support for the arrested labor activists. Their calls however fell on the deaf ears of Chinese authorities. The detained activists have to this date still not been allowed to meet with their lawyers. In addition, the Communist Party's propaganda apparatus - the New China News Agency, People's Daily and China Central Television (CCTV) - launched a smear campaign against these activists, in particular Zeng Feiyang (曾飞洋), essentially sentencing them without a trial in the court of public opinion. Feiyang's wife and child have been intimidated, and Zhu Xiaomei (朱小梅) has been separated from her baby daughter who was breastfeeding when she was detained. The families of the other detained activists - He Xiaobo (何晓波), Meng Han (孟晗), Peng Jiayong (彭家勇), Deng Xiaoming (邓小明) - are all sick with fear, and the whereabouts of another former worker-turned-collective bargaining specialist, Chen Huihai (陈辉海), is still unclear. Their treatment reflects a callous approach to the rule of law and legal and procedural fairness in criminal proceedings.

Fellow Workers and Compatriots, if the rights and interests of workers who make up the large majority of China's population cannot be protected, if workers are increasingly deprived of their economic, political, cultural and social rights, if the contradictions between officials and citizens, workers and capital, rich and poor, continue to worsen, then what is the  prospect of everyone living in a free, equal, fair, democratic, law-based society where "socialism is the core value"? It is doubtful that even our most basic survival and security can be assured in such a society! It follows then that defending and fighting for workers' rights and interests is not only essential for workers, but also to the stability, security, fairness and well-being of society as a whole. Labor rights activism is not a crime! Labor rights organizations have not committed any crime! Labor rights activists have not committed any crime! Not only are they are not guilty of any crime, they have also made great contributions to our society, state and nation. They are the underlying force behind a labor movement that has emerged in waves since 2010. They are why people from all walks of society are increasingly paying attention to, and supporting, the labor movement.

China’s 30 years of rapid economic growth is coming to an end, and its demographic and environmental dividend have been exhausted. At the same time, the social and historical contradictions hidden by economic growth are now becoming apparent. Government, businesses and workers face the dual burden of an economic recession and social instability, with workers bearing the greatest share: they gain the least in times of economic growth, and inevitably lose the most in the downturns. Not only are they the first to lose their jobs and become destitute, but as soon as they protest they are suppressed by the “stability maintenance” authorities.

How is it that the working class is destined to continually bear the costs of economic growth and recession? Why should the powerful classes reap the profits when the economy grows and let others take the hit while they do nothing in times of recession? In early 2015, some of China’s labor activists proposed a “New Deal for Workers” to the government, suggesting a reform of the system of wealth distribution, and the establishment of universal social insurance. Another option would be to boost domestic demand, but this would require government and businesses to give a bigger piece of the pie to workers and society. This type of policy helped the United States make it through the economic crisis of the 1930s, but do Chinese leaders have that kind of heart and will?

Fellow Workers and Compatriots, it is true that we wait on the government to appraise the situation and put forward the correct policy, but we also know that freedom, equality, justice, security and happiness are things that we cannot wait for; they can only be obtained by fighting for them. If we fight we may lose, but if we do not fight we gain nothing. In this new year, labor activism may face an even more severe threat. But we are convinced that the labor movement will follow its inherent tendency to progress from its infancy to a more mature form. The rights to organize, to engage in collective bargaining, and to strike, and workers’ economic, political, cultural and social rights, will all be achieved step by step.

"Strong grows the grass on plains rich with blood, across a vast and frozen land, spring arrives in all its glorious color." We labor rights defenders offer these lines of poetry as our New Year message and our outlook for 2016.


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寒凝大地发春华:中国劳工界2016年元旦献词 

亲爱的劳工兄弟姐妹和全国同胞:新年好!

        2015年岁末雾锁神州、寒凝大地之际,劳工界遭遇前所未有的严厉打击,一批长年致力于维护劳工权益的公益人士被刑拘、监控和传唤,一时间风声鹤唳、草木皆兵!但劳工界和社会各界部分人士很快作出反应,发布致中共中央、全国人大、国务院意见书,痛陈数十年来劳工权益被严重和普遍侵犯的事实,阐释劳工NGO产生和发展的必然性和必要性,评估其工作对维护劳工权益和社会公平正义的价值和贡献,要求释放被捕劳工维权人士。短短十多天间,有490余人参与联署,60多名律师参加法律援助团。国际劳工界和学术界随之响应,超过40个国家的200多个团体和数千个人,以联署、请愿、游行等方式,表达其对此一打压行为的抗议和对被捕劳工维权人士的声援。然而,傲慢的权力置若罔闻,被捕者至今不得律师会见,新华社、人民日报、中央电视台还对他们加以污名抹黑、未审先判,曾飞洋的妻儿被吓病了,朱小梅还在哺乳期的女婴被饿瘦了,何晓波、孟晗、彭家勇、邓小明的家人无不处在忧心如焚的恐惧之中,而另一名工人出身的劳资集体谈判专家陈辉海,则依然处在莫名其妙的失联状况。依法治国、罪刑法定和程序公正,就这样碎成了一地鸡毛!  

劳工兄弟姐妹们、同胞们,如果占我国人口绝大多数的劳动者的基本权益得不到保障,如果对劳动者的经济、政治、文化和社会权利的剥夺日趋深重,如果官民对立、劳资对立、贵贱分化、贫富分化愈演愈烈,我们能指望大家生活在一个“社会主义核心价值观”所昭示的自由、平等、公正、民主、法治的社会环境中吗?岂止不能,恐怕连最起码的生存与安全也得不到保障!可见,维护和争取劳工权益,不仅对底层劳动者来说是天经地义的,对整个社会的稳定、安全、公平与福祉,也是须臾不可或缺的!劳工维权无罪!劳工维权机构无罪!劳工维权人士无罪!岂止无罪,其对整个社会、国家和民族的存在和发展,还建立了莫大的功勋!筑底线于土崩,挽狂澜于既倒,舍我劳工其谁焉?这就是为什么2010年以来劳工运动此起彼伏、前仆后继的深层原因,这也是为什么社会各界对劳工运动越来越关注和支持的根本原因。

中国经济持续三十多年的高速增长已经后继乏力,人口和环境“红利”将近耗尽,与此同时,经济增长掩盖下的社会矛盾和历史欠账逐一浮出水面,政府、企业和劳工面临着经济衰退和社会维稳的双重压力,而劳工承担其中最大的份量:在经济增长过程中他们所得最少,而在经济下行过程中必定所失最多,不仅要首先遭受失业和绝对贫困化的生存危机,而且一旦抗争,又会招来维稳体制的重压。

但是,难道劳工阶级就命中注定要无休无止地承受经济发展或衰退的所有代价和成本吗?凭什么有权有势的阶级在经济上升时获取暴利而在经济下行时做甩手掌柜呢?2015年初劳工界向政府建言以分配制度改革和建立覆盖全民的社会保障为核心的“劳工新政”,或许可以提振内需,但这需要政府和企业从既得利益中吐出一块来返还劳工和社会。这种做法曾经帮助美国渡过了20世纪30年代的经济大危机,中国的肉食者有没有这样的良知和担当呢?

  劳工兄弟姐妹们、同胞们,我们固然期待国家审时度势做出正确的决策,但我们也深知,自由、平等、公正、安全、幸福是等不来的,只能奋勇争取才会获得;争取或有所失,不争取必无所得。在新的一年里,劳工维权也许会面临更严峻的形势,但我们也坚信,劳工运动将会沿着其固有的趋势从低级阶段走向中级阶段和高级阶段。劳工的团结组织权、集体谈判权和罢工权,劳工的经济、政治、文化和社会权利,必将一步一步得到实现。

     雪沃中原肥劲草,寒凝大地发春华。就让这句诗成为劳工界的元旦献词和新年展望吧!



Tuesday, December 15, 2015

How Civil Society Can Resist State Repression, Part I: Changing the Way We Perceive Repression

I’ve been meaning to write for a while about a insightful and timely article written by Michael Caster – “Matching Resistance to Repression in China” – which was published on April 8, 2015 in Open Democracy. I now have no more excuses for procrastinating after police actions were launched last week against Chinese labor activists in the southern Chinese city of Guangzhou. To date, at least five activists have been criminally detained, while others have been interrogated and released, and computers confiscated from their offices[1].

What inspires me to write this post is not the police action but the vigorous response by Chinese workers and civil society activists, organizations and their supporters. Their firm, courageous stance in the face of state power touches on the important question of how civil society, particularly those working in authoritarian systems, should respond to state repression. Borrowing insights from Caster’s article, I’d like to propose some ways of thinking about this question. Recognizing the difficult and unpredictable nature of civil society actions in hostile environments like China, I hesitate to offer any hard and fast prescriptions. Instead, I’d like to think of this post as the first in a series of meditations on the subject, offering ways to rethink our response to state repression.

My starting point is an observation made by Caster:

Throughout 2013 to 2014, I remember many grassroots activists around China relating to me their perceptions that the ferocity of government repression should be understood as steadily increasing pressure, not as a swift crackdown. It is severe and inexcusable, without question, but in this sense it is more similar to the ‘frog in boiling water’ folk tale than the sudden purges of past dictatorships. 

I think this point deserves to be highlighted and emphasized again and again. Repression should be seen not as a one-off crackdown by an omnipresent state, but as a series of police and extrajudicial actions to exert, in Caster’s words, “steadily increasing pressure” on civil society. I’ve always disliked the word crackdown because it suggests an action without any history or context or follow up. “Crackdown” is also a useful, catch-all term used to refer to any seemingly repressive action by the state ranging from unfriendly regulations to a police raid. But every crackdown has a backstory, a history, and is part of a series of past and follow up actions by the state and civil society. In addition, the word crackdown magnifies the power of the state by suggesting that it has put an end to the activities of the activists or NGOs in question. The June 4 crackdown on protestors in 1989 came close to this meaning, but the vast majority of “crackdowns” lack the finality of June 4. Repression, harassment, raids, police actions all come to mind as better alternatives to the term “crackdown”.

Borrowing a chess metaphor, the term crackdown sees repression as as an endgame situation of getting to checkmate in a few moves where one side emerges victorious and the other is extinguished.  But if we see repression more as a series of actions designed to exert pressure on the activist or NGO, then the more appropriate chess metaphor is that of a long endgame in which both sides are seeking positional advantage. This latter situation is what we are dealing with in post-1989 China. 

A second point I would make is that repression should not be seen as coming from a monolithic, all-powerful state, but from specific state actors. Given the opacity of the Chinese state, it’s almost impossible to know with any certainty where the order for the repression originated. But we do know enough about the Chinese state to know that it is far from monolithic or unified, and that there are many departments and localities within the state with different, and even conflicting, interests and agendas. Decisions to harass or detain activists or close down an NGO are made within this system and shaped by this interest-based logic. We know that many actions against civil society over the last two decades have come from local authorities or from specific departments or individuals that view activists, NGOs, bloggers, lawyers and others as a threat to their interests.

Changing our perception and naming of repression is important because it recalibrates the challenges facing civil society activists and supporters, and the bar for what they can achieve, to a more realistic and human level. Magnifying the size and scope of the threat and the necessary response might be good for getting people’s attention, but it does not stimulate intelligent, strategic decision making. On the contrary, it can lead activists to either overreach or make bad decisions, as in the case of the 1989 protests or the Occupy Central protests in Hong Kong, or to question whether they can do anything at all.

As the Davids facing the Goliath of the state, civil society needs to identify achievable goals that can lead to small achievements that will instill confidence in, empower and unify citizens who come together because they wish to and can act. At the same time, civil society also needs to consider, discuss and debate how these goals will help to bring about a long-term, strategic objective whether that objective be a vibrant and independent civil society or a more equal and tolerant society or a democratic regime.  In Caster’s words,

Rather than pursuing tactics of sudden unrest and demanding high-profile victories, more can arguably be achieved – especially within a high-capacity authoritarian regime such as China – through strategic actions, producing limited but sustained improvements.

Baby steps, as my wife said when I told her about this post. Baby steps for a nascent civil society sounds about right, but baby steps with a grown up vision.


[1] See Tom Philipps’ December 10, 2015 article in The Guardian, “Calls for China to free labour activists or risk backlash from frustrated workforce”.

Sunday, November 29, 2015

More Comments on the Charity Law Draft (public comments due November 30!)


In an earlier post on November 11 (Some Good News Regarding the Overseas NGO Law Draft and the Long-Awaited Charity Law), I discussed the first draft of the Charity Law which was released for public comment at the end of October. Tomorrow (November 30) is the last day to post comments on the draft so I thought I would provide some more thoughts on this draft. I was fortunate to be able to attend a talk on Friday at the Chinese University of Hong Kong by Professor Anthony Spires, who is an expert on Chinese civil society and has been monitoring the Charity Law since it was first proposed almost 10 years ago, and will include some of his commentary here.

In my earlier post, I noted that the Charity Law draft, on the whole, provides a positive, enabling environment for charitable organizations.  The Overseas NGO Management Law draft, in comparison, looks stifling and draconian. Professor Spires confirmed that earlier drafts of the Charity Law did cover the activities of overseas charitable organizations before a different division of labor was suddenly decided on late last year. The Charity Law would only address Chinese organizations and come under the supervision of Civil Affairs, while activities of overseas NGOs would be regulated by the Overseas NGO Law under the supervision of the Ministry of Public Security.

My earlier post examined three positive highlights of the Charity Law draft[1].  Here, let me elaborate a bit more and add some critical discussion of some of the language in this draft that I would like to see revised.

One highlight of the draft is that it upholds a quite expansive view of charity or philanthropy to include the promotion of health, environmental protection and “other activities consistent with the societal public interest”. Of course, we will see have to see how this law is implemented, but the language here would theoretically allow for work on HIV/AIDS, labor and legal advocacy to be considered charity. That would be a big step in the right direction given the importance of the term “charity” in Chinese discourse on civil society.

Second, the draft appears to allow for the direct registration of charitable organizations, thereby doing away with the old “dual management system” in which NGOs had to find a professional supervising agency before they could register with Civil Affairs. The language in the draft could be clearer on this point, but an article posted on the NPC’s website confirms that this is the intent. Article 9 states that charitable organizations would also have to meet “other conditions stipulated by law and administrative regulations” so it does it leave open the possibility that other laws such as the Overseas NGO Law or the various regulations for registration and management of social organizations would need to be considered. There has also been talk about drafting a Social Organizations Law that would address the registration and management of all social organizations, not just charitable ones, but also trade and professional associations, scientific associations, community organizations, among others. Given that the Overseas NGO Law and other related regulations are currently being drafted and revised, their impact on the Charity Law remains to be seen.

Third, the last article in this draft law notes that “even when a non-profit organization with the purpose of conducting charitable activities is not registered, it can still conduct charitable activities within its limits, but shall comply with the relevant provisions of this Law and benefit from relevant rights and interests according to law.” As I said in my previous post, this clause essentially says that unregistered NGOs should not be considered as illegal and should be allowed to carry out charitable activities. That is a very significant step forward from seeing such NGOs as illegal, and recognizes that small, community groups or groups consisting of marginalized populations such as sex workers may not have the capacity or desire to register but may still perform an important societal purpose.

To these positive highlights, Professor Spires adds a few more optimistic observations:

One is contained in Article 24 which states that “charitable organizations can form professional associations (hangye zuzhi). These professional organizations  shall reflect needs of the profession, promote professional, strengthen  professional  self-discipline,  raise  the  credibility  of  the  charity  sector and promote the development of charitable causes.” This article encourages something that used to be discouraged which is for charitable organizations, NGOs to come together to form networks and associations that can represent their interests and help to develop the sector. One example that comes immediately to mind is the China Private Foundation Forum (中国非公募基金会论坛) that was formed several years ago and meets annually to promote discussions on developing and regulating the philanthropic foundation sector. This type of self-regulation among charitable organizations within the philanthropic sector is precisely the kind of regulation that the Charity Law should be encouraging, while minimizing regulation by government agencies.

Another is that there is no corporatist language restricting the number of charitable organizations or their scope of work. In past regulations, it was common to see clauses that stated that only one social organization working on that issue area was allowed to register within a given administrative area, or that a social organization registered in an administrative area could only work within that area. For example, an organization working on water pollution in Beijing could not register if a similar organization was already registered in Beijing. And if a water pollution organization was able to register in Beijing, it could only legally work within the administrative borders of Beijing, even though water pollution does not respect such borders.

Finally, Article 100 states that charitable organizations only need to submit an annual report. Under past regulations, social organizations were required to go through an annual review process. If they did not pass that review, then they could have their registration annulled. Under this draft, charitable organizations only have to submit a report to the Civil Affairs authorities; they do not need to have that report approved by the authorities.

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While this draft sets a good model for forthcoming legislation in the NGO sector, it is not perfect. There are a number of areas for improvement if you want to dive into the details. Here are a few of the major issues that stood out for me:

1) Chapter 3 of the draft addresses Charitable Fundraising and, following past practice, separates charitable organizations into two classes: public fundraising (公墓) and non-public fundraising (非公募). The former are allowed to fundraise through public channels such as television, radio, newspapers, setting up collection boxes in public spaces, holding charitable performances, sales, competitions, gala dinners, etc. The latter are only allowed to accept private gifts and donations. Articles 25-26 in this chapter allows charitable organizations that previously had public fundraising status to keep their privileged status, while other organizations need to wait for a two-year period and show they operated within the rules and have not violated the Charity Law.

This stipulation sounds reasonable but it maintains a two-class system in which charitable organizations with public fundraising status (most of these are GONGOs or NGOs with government connections) are grandfathered in, while other organizations have to prove their credentials. Yet the former are by no means deserving of that status. In 2011, a number of scandals such as the Guo Meimei  incident rocked the philanthropic sector, and all of them implicated public fundraising GONGOs such as the Chinese Red Cross and the China Soong Chingling Foundation. These charitable organizations should also have to prove their worth, and not automatically be given public fundraising status simply because they are big, “professional” and have government connections.

We also should keep in mind that in the past, small, grassroots organizations doing sensitive work can, and have been, cited by authorities for violating various laws and regulations as a way to close these organizations down or discourage them from continuing their work. In this context, charitable organizations that have been cited for violating the law should not be automatically disqualified. This draft states, to its credit, that Civil Affairs authorities will only consider violations of this Charity Law rather than of other existing laws and regulations, but still the authorities’ selective application of laws and regulations to silence organizations doing more sensitive work should be kept in mind; these organizations should be given a second chance to apply for public fundraising status.

2) There are also various references to the tax benefits of charitable organizations, but these references should be made clearer in terms of which tax laws and regulations apply since this is an area that is unclear not only to charitable organizations but also to tax authorities. A great deal of work needs to be done to raise awareness about, and simplify procedures, for obtaining tax benefits for both charitable organizations and donors to those organizations.

3) There is quite a bit of emphasis in this draft on transparency and information disclosure, with an entire chapter (Chapter 7) devoted to this issue. While it is understandable that charitable organizations should be accountable and transparent, this draft goes too far in requiring charitable organizations to report on how they use their donations. Articles 76 and 77 in particular, require a level of reporting that would make it difficult for smaller, grassroots organizations that lack staff to do report at this level. More emphasis should be placed on self-discipline and self-regulation, and relying more on professional associations and industry standards, and less on government authorities, to regulate this area.

4) Finally, the drafters need to be careful of using overly broad language such as “endangering national security or the public interest” to justify investigations of charitable organizations. Article 109, for example, states: “Where charitable organizations engage in or fund activities that endanger national security or the public interest, the relevant organs investigate in accordance with law, and where the circumstances are serious, the civil affairs departments revoke registration certificates; where a crime is constituted, pursue criminal responsibility in accordance with law.”


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In conclusion, the Charity Law draft is a promising piece of legislation. Too often, we see laws and regulations issued seeking to discourage and restrict the tremendous interest in philanthropic and public interest activities in Chinese society. With some further revisions, this draft could set an important standard for legislation that finally enables the development of the charitable, civil society sector in China.

As Professor Wang Ming of Tsinghua University said in his address earlier this month announcing the launch of Tsinghua’s Institute of Philanthropy, we need to start thinking about how best to develop philanthropy and civil society once this law passes. We need to start thinking about what philanthropy and civil society in China will look like in the post-Charity Law era.


[1] There are two English-language translations of the Charity Law draft provided by China Development Brief and ChinaLawTranslate.

Tuesday, November 24, 2015

End of China's one-child policy will ease pressure on gays and lesbians to bear children

This op-ed by Tim Hildebrandt appeared in the South China Morning Post on November 9, 2015, soon after the Communist Party leadership announced they would end the one-child policy and allow Chinese families to have two children. With Tim’s permission, I’m reposting it here because it looks at the impact of the one-child policy on one marginalized group in China that rarely gets much consideration and yet is quite active in the NGO sector – the LGBT community.

End of China's one-child policy will ease pressure on gays and lesbians to bear children

The Communist Party intended to help the struggling Chinese economy when it overturned the country's infamous one-child policy last week. The decision to rescind the policy will undoubtedly be welcomed by the country's growing middle class, the next generation of Chinese who will now have the prospect of knowing what it means to have a sister or brother, and corporations who are relishing an even larger market. But one group that the party never considered is also likely to benefit: China's lesbian, gay, bisexual and transgender (LGBT) community.

The one-child policy never mentioned homosexuality. But its ill effects over the decades have fallen disproportionately on the country's LGBT community. Numerous surveys of gays and lesbians in the country consistently reveal that family pressure is of utmost concern. Indeed, in the decade-long research I have conducted on these issues in China, I found that gay and lesbian citizens consistently ranked family pressure as the biggest obstacle they face. One chance at raising a child who meets all of the expectations of parents put enormous burdens on gays and lesbians, keeping them in the closet and contributing to high rates of depression and suicide. The pressure to produce grandchildren is acute.

The desire for grandchildren isn't, of course, limited to China. But the obsession often leads to pressure on gay and lesbian children to conform to a heterosexual life and produce offspring. In China, the expectations for continuing the family line to fulfil ancestral obligations are often extreme. Still, the push to be grandparents has as much to do with material concerns as worries about the afterlife. In this respect, another policy change in the last decade has created a decidedly material incentive for families to pressure their only child into living a straight life and producing a grandchild: the government's dismantling of cradle-to-grave support. Elderly care, once guaranteed by the state, has been severely cut, partly because of the assumption that one's children and their grandchildren can fill the gap left by the state and take care of them. And so, in essence, the pressure that gay and lesbian Chinese feel is not only due to the risk of hurting the family's reputation, but something very material: the parents view a gay or lesbian child as a potential threat to their care as they age. Because both in vitro fertilisation and adoption are difficult, "traditional" and "natural" male-female births are seen as the only option for parents.

In its 35-year history, the one-child policy has long been used by government critics in the international community as evidence of its callous view of human rights. Activists have derided the effect it has had on unwanted pregnancies and children: stories of sex-selective abortions, newborn girls abandoned in public toilets, and even female infanticide have become regular news fodder. But Beijing's decision has far more to do with demographic forces than human rights concerns, whether they be concerned with forced abortions or social pressure on LGBT people. The policy was intended to curb population growth that the party could not afford while also developing a modern economy. It is being rolled back now because, ironically, the government can't afford to keep it in place. With fewer young people entering the workforce, the country is less able to support the larger number of aged citizens.

The policy shift will certainly not be an instant panacea for gays and lesbians. Family pressures are likely to remain, and changing the policy will be too late for the current generation of gay and lesbian young adults. Hopefully, the possibility to have an "heir and a spare" will ease the pressure placed on gay and lesbian Chinese, allowing them to live a more open and less stressful adult life. Although it was not the intent of Beijing, easing limitations on births should go far in helping to build a more respectful environment for gays and lesbians across the nation.

Dr Timothy Hildebrandt is assistant professor of social policy and development at the London School of Economics and Political Science. He is the author of Social Organizations and the Authoritarian State in China (Cambridge University Press, 2015), and researches and writes on LGBT activism and related policy issues in China and around the world.