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 (公募) 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.

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

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.

The Launch of Tsinghua University’s Institute for Philanthropy

When I was in Beijing this first week of November, I had the opportunity to attend the Tsinghua International Conference on Philanthropy （公益慈善国际研讨会）announcing the opening of the Tsinghua University Institute for Philanthropy （公益慈善研究院）.  The conference was held at the Wenjin International Hotel in the Tsinghua Science Park on November 5, 2015.

True to the conference’s name, both overseas and Chinese guests were invited. The international guests included the president of the International Society for Third Sector Research (ISTR), the dean of Indiana University’s Lilly School of Philanthropy, Chairman of the Asian Venture Philanthropy Network (AVPN),  chair of the Hong Kong Jockey Club Charities Program, along with other academics and NGO representatives from Hong Kong, Macao and Taiwan. The Chinese guests included officials from Tsinghua University, the Ministry of Civil Affairs and the All-China Federation of Industry and Commerce, the head of the One Foundation, and leading lights from the academic world such as Wang Ming (the dean of China’s NGO studies and the Dean of the Institute of Philanthropy), Deng Guosheng, Kang Xiaoguang from Renmin University, Jin Jiping from Beijing University, Tao Chuangjin from Beijing Normal University, and Zhu Jiangang from Sun Yatsen University.

For those steeped in the history of NGO studies in China, the opening of the Institute is an important event because of the place Tsinghua occupies in NGO studies. Tsinghua established one of the earliest NGO Research Centers back in the late 1990s. That center published the first Directory of Chinese NGOs in back in the early 2000s, and Tsinghua scholars such as Wang Ming, Deng Guosheng, and Jia Xijin have played an instrumental role in promoting the field of NGO studies, and in pushing for an enabling regulatory environment for NGOs through their work. Currently the center publishes China’s leading journal on NGOs, the China Nonprofit Review (中国非营利评论).

Notably, the Institute was set up jointly by Tsinghua University and the Ministry of Civil Affairs.  It will be directly under the university and separate from the School for Public Administration and Policy which houses the NGO Research Center.  Unlike the School for Public Administration and Policy, the Institute will  not have degree programs of its own. It is only a research institute for now, although that may change in the future.

The themes of this two-day conference are cross-boundary, innovation and sharing. Plenary session 1 addresses the essence of philanthropy; session 2 examines borderless philanthropy; session 3  looks at philanthropic innovation and the market; and session 4 discusses the power of philanthropy.  I was only able to stay for the opening remarks, and had to miss the plenary sessions.

Toward the end of the opening remarks, the Associate Dean of the Institute, Wang Chao (who spent much of his career in the NGO world working for international NGOs such as World Wildlife Fund and World Vision) introduced the Ci-Lab (“ci” as in philanthropy or charity) or Social Innovation Lab which will be one of the Institute’s programs set up with the aim of promoting innovative ideas, individuals and organizations and matching innovators with resources.

The newly-issued Charity Law draft was on the lips of a number of the opening speakers, including the Ministry of Civil Affairs official who mentioned that the Charity Law draft is now available for public comment and hoped that it would be passed quickly. Professor Wang Ming also spoke about how the Charity Law would provide a more open environment for philanthropy in China and asked the audience to reflect on what the post-Charity Law era would bring for Chinese philanthropy. 

Grassroots NGOs Win Landmark Environmental Public Interest Lawsuit

In this second year of a sustained crackdown on civil society activists and organizations in China, the environmental sector has been one of the few bright spots. On January 1 of this year, the newly revised Environmental Protection Law loosened restrictions on organizations that could sue polluters on behalf of the public interest (so-called environmental public interest lawsuits) to include qualified civil society organizations. Then in late February, Chai Jing, a former CCTV investigative reporter, released her documentary "Under the Dome" about China's smog crisis. That documentary immediately went viral getting hundreds of millions of clicks just a few days after going online.

Now we can add yet another example to this list. About two-and-a-half weeks ago, on October 29, 2015, the Nanping Intermediate People's Court in China's southeastern Fujian province issued a judgement in favor of two grassroots NGO plantiffs: Beijing-based Friends of Nature and Fujian Green Home. These two NGOs filed the lawsuit on the same day the Environmental Protection Law went into effect. The defendant was a quarry company that had engaged in illegal mining and damaged the surrounding forest. The company owners were ordered to pay fines totaling 1.46 million yuan (US$230,000) in compensation for 'loss of environmental benefits' and legal costs, and given five months to restore the forest to its original state or face further fines.

Some may take exception to calling this a landmark case and they would have a point. The term "landmark" can be abused and overused. What constitutes a landmark case? Is this really a landmark case given that the polluter is a merely a local quarry company, not a large state-owned enterprise? Is it a landmark case given that we still are unsure if the court ruling will be enforced by local authorities, and if the polluters will pay the fine and clean up the forest as ordered? Is it a landmark case given that other significant cases have preceded it? As Stanley Lubman points out in his very informative blog, an earlier "groundbreaking" lawsuit was filed last October by an environmental association in Taizhou City in China's eastern Jiangsu province against companies that were dumping waste acid into local rivers. The intermediate court in Taizhou ended up fining the defendants U.S.$26 million — the largest ever in a public interest lawsuit in China and much larger than the fine levied in the Fujian case.

In an excellent article in The Diplomat, Scott Wilson, who has researched citizen participation in environmental governance, writes about the Taizhou case that it should be seen as an example of the Chinese government seeking to control the environmental litigation process. The Taizhou environmental association that filed the lawsuit - the Taizhou Environmental Protection Federation  (TEPF)- had been founded as a government-organized NGO (GONGO) that same year (the name is a dead giveaway as a local affiliate of the All-China Environmental Federation, a GONGO established with the blessing of the Ministry of Environmental Protection). The irony was that TEPF was able to file this lawsuit under a recently-amended Civil Procedure Law which allowed "relevant organizations" to file environmental public lawsuits for the first time. Yet under the newly-revised Environmental Protection Law, which only allows NGOs with five years experience in environmental protection work to file such lawsuits, TEPF would not have qualified. Pushing the irony further, Friends of Nature, a grassroots, independent environmental NGO established 20 years ago, filed a lawsuit in Taizhou against a chemical company involved in the same pollution case, but the local court refused to hear the case, saying Friends of Nature had no standing to initiate the lawsuit even though it had 19 years more experience than TEPF. The Taizhou case highlights the privileged position occupied by GONGOs which are used by the Chinese government to manage social and environmental issues while appearing to be tolerant of NGO-type organizations.

In this context, the Fujian lawsuit is a landmark case because two independent environmental NGOs with no connection to the government managed to win in a country where the Communist Party seeks increasingly to guide civil society along the correct path. It will be a case that other independent environmental NGOs can build on as a model of, and inspiration for, grassroots activism. Friends of Nature, in particular, is known to many as one of the first independent environmental NGOs, founded by Liang Congjie and friends (Liang Xiaoyan, Wang Lixiong, and Yang Dongping) in 1995 and has been involved in many of the major citizen-led actions on behalf of the environment in China over the last two decades. It's a shame that Liang Congjie, who died at the age of 78 in 2010, did not live to see this day. He would have been proud of the organization he helped to start.

Civil Society’s Response to Terrorism: the Paris Attacks and China’s Crackdown

Reading about the atrocities committed in Paris yesterday, I was struck by a parallel between the Paris attacks and the recent crackdown on China's civil society. This parallel had to do with how civil society should respond to terrorism of all kinds, whether domestic, transnational or state terrorism. What we saw in Paris appeared to be a blend of domestic and transnational terrorism. But terrorism can also be of the state variety carried out by state actors such as the police and government security forces against its citizens.  The latter is what Chinese civil society – NGOs, human rights lawyers, labor activists – is currently facing in a sustained clampdown that is well into its second year.

In formulating an answer, one thing to keep in mind is the important role the media plays in conditioning our response. Unfortunately, much of the media magnifies the effect of terrorism by focusing on the violence and brutality of the action, and instilling a sense of fear and helplessness with headlines like “Paris Terror,” “Terror in Europe,” “An Awful Realization: Terror Strikes Again” and the unfortunately-worded “Massive Muslim Terror Attack in Paris.”

The same is true of the way media and human rights organizations often report on the Chinese government’s crackdown on activists and NGOs. The narrative is to portray them as victims who are helpless in the face of overwhelming state power. To be fair, we need to be informed about civil society's plight so that it can receive attention and support from the international community, and both the media and human rights organizations play an important role here. But the narrative can become so one-sided and deafening that it can have a paralyzing effect on both activists and bystanders. People and organizations stop what they are doing or change their usual routine, lie low or head for shelter to escape the impending storm. But this behavior is precisely what terrorists intend, to instill a sense of fear and helplessness among citizens so that they will give into the agenda of those who seek to terrorize them.

The way for citizens and civil society organizations to respond to terrorism is to resist this narrative, and stand firm, resolute and optimistic in the face of terrorism, and continue to work with others to move forward on making the world a better, more equitable and yes more hopeful place. After the Paris attacks, there will be a great deal of work to be done in advancing that agenda. Finding and working hand-in-hand with like-minded people is important because solidarity provides the empowering effect needed to resist fear, helplessness and anomie.

I realize this may all sound obvious but it is actually very difficult to do when the dominant narrative does not encourage this mindset. These days I meet with funders, and representatives from foreign governments and international organizations, who tend to treat us like victims, buying into the narrative that the space for civil society is closing. We are viewed with sympathy, but when we say we are finding ways to move our work forward and are looking for funding, our remarks are received with skepticism and we’re told how many Chinese organizations cannot carry out their projects because of the crackdown. I almost want to say, listen we have a labor movement to build and it can't wait. But I sense a passive response from us is what is expected, while an optimistic, defiant response gets challenged instead of supported.

So I was happy today to find a sign that some (many?) citizens in Paris are responding to the attacks with great courage and optimism. That sign was not in any headlines but buried deep in the middle of one article on the Paris attacks. A French woman who was on her morning run was asked for her reaction to the attacks. She said she was still trying to process the events, but without succumbing to fear. “This is not Iraq or Afghanistan. We are not at war here. We need to stay confident and hopeful.”

That quote beautifully expresses the attitude that civil society can and should take in response to terrorism.

Update for January-June 2014: Legislative Progress and Continuation of a Clampdown

Looking back at this update that I wrote for the International Center for Not-for-Profit Law back in 2014, I see that I was on target about the Charity Law although understandably pessimistic that a draft would appear in the next year or so.  I was also right in reading the signals about upcoming regulation for international NGOs but failed to anticipate the Xi Jinping administration’s embrace of national security priorities in 2014, and what that embrace would mean for international NGOs in the form of the Overseas NGO Management Law that came out in draft form in early 2015.

January-March 2014

In March of 2014, the annual “two meetings” (lianghui) – the second session of the 12^th National People’s Congress (NPC) and the Consultative People’s Political Conference (CPPCC) – were held in Beijing. The NPC session’s focus was on introducing a legislative agenda to carry out the broad policy pronouncements issued by the Third Plenum of the 18^th Central Committee which met earlier last November.  According to various sources, that agenda includes working on the revision of the registration and management regulations for social organizations, the Charity Law which has been in limbo for almost 10 years, and various other policies on tax exemptions to encourage charitable donations, government procurement of services, strengthening trust in charitable organizations through third-party evaluations, improving transparency of foundations and nonprofits, and promoting religious charitable activity.

1) Formulating a Charity Promotion Law  (cishan shiye cujin fa, 慈善事业促进法) to regulate charitable organizations and undertakings. The Charity Promotion Law has been referred to in other discussions in this Note as the Charity Law. Li Liguo, Minister of Civil Affairs, recently revealed that the Charity Promotion Law was placed on the NPC Standing Council’s agenda for this year, although observers believe it will be several years before the Law will be passed[1].

2) Improving previous proposals to encourage religious groups to establish charitable undertakings such as hospitals.

3) Relaxing and clarifying policies regarding the development of civic charitable undertakings [民间慈善事业], as well as giving tax breaks to promote those undertakings. In January of 2013, the Ministry of Finance and State Administration of Taxation issued more clarification on tax exemptions in the form of a Notice on Management Issues Related to Determining Qualification for Tax-exempt Nonprofit Organizations.

4) Strengthening lack of trust in charitable organizations through third-party evaluations and rating systems.

April-June 2014

The spring months have been a tumultuous period for civil society in China. With the launching of an unprecedented high-level anti-corruption campaign by the new administration under President Xi Jinping, the 25^th anniversary of the June 4, 1989 protests looming, large-scale strikes at the IBM and Yue Yuen shoe factories in Guangdong in March and April, and a number of bombings and attacks in the spring that the Chinese government attributes to Uyghur separatists, the security situation for civil society groups and activists became increasingly tense. During the April-July period, a number of lawyers and other civil society activists were detained or arrested and charged with “gathering to create a public disturbance” and other crimes. The well-known anti-discrimination NGO, Yirenping, had its Zhengzhou office raided in June and again in July. In addition, a number of Christian churches in the eastern province of Zhejiang were demolished. The scope of these detentions and arrests was substantial – some say unprecedented – and included groups and activists who had not experienced repression in the past. 

At the same time, we continue to see some progress on the legislative front such as the newly-revised Environmental Protection Law which allows a broader range of NGOs to file environmental public lawsuits, mention of the Charity Law being placed on the national legislative agenda, and signals about formulating regulations for international NGOs.

On April 24, 2014 the 8th meeting of the Standing Committee of the 12th National People’s Congress approved the revised Environmental Protection Law which will come into force in 2015. This Law went through several drafts. Earlier drafts elicited criticism from civil society organizations because they placed narrow restrictions on NGOs that were qualified to file environmental public interest lawsuits. Thus, in the first two drafts of the law, only NGOs with close government ties such as the All-China Environment Federation (a GONGO established by the Ministry of Environmental Protection) were allowed to file lawsuits. Following debates and suggestions, a third draft was presented in August 2013 according to which new actors could file a lawsuit if they respected the following conditions: being registered with a Civil Affairs Bureau above the city level, being active for at least five years, and have “a good reputation.”  In the final draft, presented in March of 2014, “good reputation” was replaced by “no record of illegal activity,” thereby widening the scope of actors entitled to file public interest environment lawsuits[2].  

Reports also came out about the drafting of the Charity Law which has been placed on the National People’s Congress (NPC) legislative timetable. The NPC Domestic Affairs Legal Committee (全国人民代表大会内务司法委员会）has taken the lead in the drafting of the Charity Law and is expected to submit it for consideration in 2015 if the legislative process proceeds smoothly. Legal scholars such as Jin Jinping, director of Peking University’s Civil Society Research Center, spoke in favor of legislation protecting one’s right to engage in charitable acts. She hoped that legislation should give communities more freedom, and stressed that when considering legislation that has to do with liability, supervision, management, and taxes, it was important to consider whether the Charity Law would promote or “imprison” one’s right to do good[3].

There has also been more high-level signaling that new regulations may be in the works that will make it easier for international NGOs to gain legal status. In May of 2014, the newly-formed National Security Commission headed by President Xi Jinping ordered a review and investigation into the operations of international NGOs working in China, particularly those with projects in rural areas. The text noted that the investigation’s purpose was to “lay the foundation for further strengthening standardized management.” This suggests that the investigation should be seen not so much as a crackdown on international NGOs working in China, but as part of a broader initiative to strengthen regulation over international NGOs which, in the past, have operated largely without much government regulation or oversight. Given the 2013 news of impending new regulations for international NGOs, it may very well be that this investigation will help to shape the content of those new regulations.

These positive legislative initiatives accompanied a wave of optimism following the Third Plenum Decision of November of 2013 and the NPC meeting in March of 2014, both of which signaled greater government support for civil society through the moniker of “social governance.” But true to the Communist Party leadership’s penchant for contradictions, these measures were followed quickly by a more repressive period in which many civil society activists, lawyers and NGOs came under greater scrutiny in the run-up to the 25^th anniversary of the June 4, 1989 protests and a substantial number were detained, investigated, harassed or arrested.

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[1] “Minister of Civil Affairs, Li Liguo: The countdown for our country’s charity legislation has begun”, 民政部部长李立国：我国慈善立法进入倒计时, China Broadcasting, 6 March 2013, available online: http://www.chinadevelopmentbrief.org.cn/newsview.php?id=8734

[2] http://chinadevelopmentbrief.cn/news/caixin-the-npc-law-committee-presents-the-features-of-the-new-environmental-protection-law-concerning-public-interest-lawsuit/

[3] http://chinadevelopmentbrief.cn/news/after-10-years-of-twists-and-turns-chinese-charity-legislation-to-be-considered-next-year/

Some Good News Regarding the Overseas NGO Management Law Draft and the Long-Awaited Charity Law

In a difficult year for civil society, we have two pieces of good news for a change. One is that the Overseas NGO Management Law (sometimes translated as Foreign NGO Management Law) draft has yet to be reviewed a third time by the National People’s Congress Standing Committee. Generally after a draft law is reviewed a third time, it is voted on unless significant problems or controversies emerge.

A comparison with the National Security Law is instructive. Both the second draft of that law, and the second draft of the Overseas NGO Management Law, came out about the same time in May for public comment. The National Security Law draft was reviewed a third time at the next Standing Committee meeting on July 1, voted on and passed overwhelmingly with only one abstention. The Overseas NGO Management Law draft, in contrast, has not been mentioned at any of the subsequent Standing Committee meetings. Since the Standing Committee meets every other month, there is still a chance that it could be reviewed in December. Still the delay suggests that the many comments on the draft law coming from both the foreign NGO and business community, and the concerns voiced by various government leaders at the highest levels in both the U.S. and Europe have been heard. In his private meeting with Xi Jinping in Washington, President Obama was said to have voiced his concerns about the law. President Xi said he supported a law to regulate overseas nonprofits, but did not say that he supported the law in its current form. In addition, my sources tell me that there is considerable dissension among various Chinese government agencies over this draft law. In short, there seems to be enough problems and controversies to delay this draft law. It may not be reviewed until next year, if then, and when it is, it may contain some significant revisions. Stay tuned.

The second piece of good news is the long-awaited arrival of the first draft of the Charity Law for public comment[1]. This law has been in the legislative pipeline since 2005 and it has become almost a yearly ritual to predict the law’s appearance and then to be disappointed. It looks that streak of bad luck is about to come to an end. On first glance, the Charity Law draft looks quite good. I’ll write in more detail about it in another post. But let me note three major highlights of this draft law.

One is that it upholds a quite expansive view of charity or philanthropy, what the Chinese call “big philanthropy” (da cishan) in going beyond traditional notions of philanthropy such as poverty alleviation and disaster relief to including the promotion of education, culture, sports, health, environmental protection and “other activities consistent with the societal public interest”.

Second, it 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.

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.” In the past, I have never seen such a clause appear in any Chinese regulations concerning NGOs. Instead, one usually sees regulations appear (such as a Guangzhou draft regulation which came out last year and has not been heard of since) banning “illegal social organizations (the official Chinese term for NGOs),” referring to organizations that operate as NGOs without having registered. What this clause essentially says is that unregistered NGOs should not be considered as illegal and should be allowed to carry out charitable activities. That is a significant step forward.

Of course, there are some problems with this draft such as continuing to insist on a higher bar for charitable organizations that want to engage in public fundraising, and too much emphasis on compelling charitable organizations to disclose information. I’ll write more on these issues in a later post.

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[1] I’m grateful to ChinaLawTranslate for providing a preliminary English translation. This translation still has a number of problems but is the only English translation available, and the nature of crowdsourced translations is that they will improve over time. China Development Brief should have a more authoritative translation out soon.