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 Management 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
|
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