Tuesday, March 15, 2016

The Politics of the Overseas NGO Management Law

As the National People’s Congress (NPC) winds to a close today, there’s been more interest in the status of the Overseas NGO Management draft law. The draft law was issued last May for public comments, but since then there has been little word from the NPC about it. During the NPC session, a foreign journalist asked the NPC spokeswoman, Fu Ying, about the draft law and what she said was interesting. She responded that the NPC was still reviewing the comments that had been solicited on the draft, and there was a suggestion in her phrasing that comments were still being solicited. She further stated that no decision had been taken on which NPC Standing Committee meeting (which take place about every two months to review and pass draft laws) the draft law would be sent to for review and adoption.  In other words, it was still unclear when or if this particular draft law would be passed.

Fu Ying’s admission that the draft law is essentially in legislative limbo is revealing in what it tells us about the politics behind the law. I spoke a bit about this to Didi Kirsten Tatlow of the New York Times when she interviewed me for her recent article about the draft law. I said that the delay – it’s now been more than 10 months since the draft law was issued for public comments - suggested that there was some debate over the draft law within the Chinese government. I also made this point in an earlier blog post where I noted that the National Security Law followed almost the same timeline as the Overseas NGO Law, yet passed much more quickly in July of last year.

I think though that we can go one step further and see the protracted passage of the draft law as saying something about the politics of policymaking under Xi Jinping.  The conventional wisdom is that Xi is the one who is calling the shots. He’s the one behind the anti-corruption campaign, the growing nationalist rhetoric and turn against Western values, the slew of national security-related laws, the crackdown on NGOs, lawyers, and labor activists, and the latest visit to state media (the media organs such as the New China News Agency, the People’s Daily and CCTV who are supposed to serve as the party’s mouthpiece) reminding them to serve the Party.

In short, according to this narrative, policymaking under Xi is much more top down and centralized. Whereas under Hu Jintao, power was more fragmented and decentralized and there was more give-and-take and compromise between different factions, departments and localities over policy.

There is something to this contrast between Xi and Hu. Under Hu, there were a number of  ongoing local experiments in the NGO and charity sector with different local regulations emerging in places like Guangdong, but the movement toward a national level Charity Law was slow and halting. Under Xi, these local experiments are no longer in the spotlight and instead we’ve seen a number of national security-related laws come out all in one year, while the Charity Law has emerged from its long hibernation.

I would argue, however, that we can and have taken this contrast too far. Despite our enlarged sense of his power, Xi is still part of a collective leadership (Alice Miller makes this case quite convincingly in his China Leadership Monitor reports) and he still has to work in an immense bureaucracy full of considerable factional, departmental and local interests. The delay in the Overseas NGO Law (and this is only one example) should make us reconsider whether this seemingly outdated framework is still relevant. If Xi is really the one driving all these top-down initiatives, then why is he unable to get the Overseas NGO draft law through the NPC? The answer is that he is not as powerful or secure in his position as many of us think he is.

The delay in the draft law becomes more puzzling if we consider events that have transpired since the draft was issued for public comment.  Dozens of rights lawyers have been detained in the months leading up to the NPC meeting, several labor rights activists in Guangdong were detained and criminally charged in early December 2015, and a Swedish citizen was detained in January and forced to give a televised confession for the rights defense work his NGO carried out in China. A state media smear campaign launched against the labor activists in late December accused them of using foreign funding to stir up workers to engage in strike activity. These recent actions, approved at the highest levels, and carried out by the police and state media apparatus, could be interpreted as lobbying by conservative policy entrepreneurs to strengthen support for passing the Overseas NGO draft law in its current draconian form.

If there is some truth to this interpretation, then it is striking that these “lobbying” efforts have not succeeded in breaking the legislative logjam in the case of this draft law, and suggests considerable debate and discord over this draft law.  Of course, the end result could still be that the draft law passes without significant revisions. But the drawn out process that the draft law has gone through lends more credence to the political narrative that even strong leaders like Xi need to work within a fragmented, bureaucratic system.  More mainstream observers see this system as one in which there are formidable interests seeking to water down Xi’s policy initiatives.  More cynical observers, however, see a system in which there are interests with more nefarious motives who want to go further and bring Xi down.

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