Stanley Lubman writes for The Wall Street Journal, June 16, 2015
The Chinese party-state is tightening the vise on both foreign and domestic NGOs, sending strong new signals of its determination to repress unwelcome foreign influences and activities that foster the spread of ”Western values.” A draft Foreign NGO Management Law released last month doesn’t just threaten to damage Chinese civil society, but also demonstrates strong willingness to use legislation to assert authoritarian governance without procedural justice.
In addition to controlling foreign NGOs, the Political Bureau of the Communist Party Central Committee just issued a new regulation that requires all domestic NGOs — of which there are more than 500,000 registered and an estimated 1.5 million unregistered — to establish “Party groups.” It is too early to know what this will mean, but it is clearly an additional extension of Party control.
Since the 1980s foreign nongovernmental organizations have been contributing money, manpower, technology and expertise to address China’s many development challenges. Over the years the responses of the party-state, especially to NGOs that promote Western values, have ranged from tolerance to suspicion. Foreign NGOs have never been legitimized with a clear basis for their activities, and Beijing has been unsure about how to permit some organizations to operate while discouraging others. Regulation has been uneven and enforcement has been inconsistent. Reports have circulated over the last year of increased surveillance, intrusion into offices, and harassment of NGO representatives resident in China. The new draft Law expressly regularizes supervision and close inquiry into the work of all foreign NGOs.
The publication of the draft Law initiated a thirty-day period of public comment, which has now expired. The flood of comments has included strong opinions not only from the foreign press but also from Chinese scholars and lawyers, foreign scholars of Chinese law, and diverse organizations like Human Rights Watch and the American Bar Association. Some NGOs now doubt whether they can remain active in China.
Outspoken criticism also appeared from chambers of commerce, other trade-related organizations, universities and think-tanks for information and research. Most recently, 45 American business-related organizations signed a letter to the Chinese government arguing that the new Law could severely affect Chinese commerce and industry and unreasonably expand the jurisdiction of the Ministry of State Security.
Here are principal criticisms:
- The Law applies to “non-profit, non-governmental social organizations” and their “activities” without defining those terms;
- Foreign NGOs would be placed under the jurisdiction of The Ministry of Public Security as well as the “Professional Supervisory Units” (PSUs), such as ministries or local government departments with which they have long been required to register, and they may be punished for broadly defined offenses: “subverting state power,” destroying ethnic harmony,” “spreading rumors,” and “other situations that endanger state security or damage the national interest or society’s public interest;”
- Extremely broad police powers are declared, such as search and seizure and detention of representatives without warrant;
- Extensive and burdensome reporting, filing and approval processes are imposed for work plans and activities;
- Restrictions are imposed on the size of representative offices and the number of foreigners who may work in them.
A Chinese expert, Professor Jia Xijin, Deputy Director of Tsinghua University’s NGO Research Center, has summarized the impact of the Law:
“1) the scope of the law’s coverage appears limitless, 2) interpretive power is immense and these result in consequence 3) the discretion given to law enforcement agencies to selectively enforce the law.” (English translation via China Law Translate)
In another view of the draft Law, Professor Taisu Zhang (Duke University School of Law) reminds us in a posting on the Asia Society’s ChinaFile website that “the specter of arbitrary police interference and highly ambiguous administrative review has always hung over foreign NGOs.” In his view the Law now provides a clearer roadmap of the paths that foreign NGOs have been following all along, namely “the differential treatment of politically sensitive NGOs and the more ‘friendly’/ ‘non-threatening’ NGOs under the previous legal regime can be expected to continue under this new (draft) regime.” He also suggests that it would optimistic to think that repression isn’t going to worsen.
Not satisfied with cracking down on foreign NGOs, the Party leadership has turned its attention to domestic NGOs as well. The policy toward these “social organizations“ has evolved in an irregular manner. The Party has decided to establish party-organized groups (“PONGOs”) within domestic social, cultural and economic organizations. Formerly, all “social organizations” were allowed to establish Party groups, but now they will be required to do so.
The state-run People’s Daily newspaper quotes Central Party School professor Zhang Xixian as saying that because these local NGOs continue to grow in number, the Central Committee wants them “to establish Party groups in order to better guide their development.” Party groups are “more focused on directly leading the organization to follow the core values of the Communist Party,” Zhang said.
These are chilling messages to those who thought it possible to work within the atmosphere of incomplete or murky rules. Now not only are human-rights groups being targeted, but a wide range of other organizations hoping to integrate needed social services into Chinese society could be affected.
It is not possible at this time to predict how vigorously and selectively the Law will be applied in practice, but the message of increased repression is clear. More than twenty years ago, I wrote a book that likened Chinese law to “a bird in a cage.” Now, the party-state seems to be building a similar cage around China’s NGOs, both foreign and domestic.
Stanley Lubman, a long-time specialist on Chinese law, is a Distinguished Lecturer in Residence at the University of California, Berkeley, School of Law. He is the author of “Bird in a Cage: Legal Reform in China After Mao” (Stanford University Press, 1999) and editor of “The Evolution of Law Reform in China: An Uncertain Path” (Elgar, 2012).