By Stanley Lubman, The Wall Street Journal, China Real Time Report
Stanley Lubman, a long-time specialist on Chinese law, teaches at the University of California, Berkeley, School of Law and is the author of “Bird in a Cage: Legal Reform in China After Mao,” (Stanford University Press, 1999).
Wan Yanhai, the founder of an AIDS activist group in China, made a dramatic journey to the United States with his family earlier this month, because of what he described as “government persecution.” The Washington Post report on Wan’s arrival in Philadelphia commented that the Chinese government has “intensified a subtle but steady tightening over the country’s freewheeling civil society sector, with some nonprofit groups saying they are feeling increasingly harassed.”
Meanwhile, a Chinese journal reports “a hint of fear” in the voice of a defense lawyer who tells of an incident that reflects what the article describes as “apparent moves by judicial officials to strengthen control over lawyers tied to sensitive cases, including group litigation.”
These reports reflect the Chinese government’s latest moves to intimidate or silence activities of citizens who seek to arouse public concern over actions or inaction by government agencies that are regarded by the government as troublesome, as well as lawyers considered to be too aggressive in representing their clients in public interest litigation.
The future of NGOs is necessarily linked to the government’s strategies for managing social tensions. It thereby presents a dilemma that faces the Chinese leadership: If economic growth continues to enrich many Chinese, civil society will grow as it has in recent years, and under those circumstances how much will NGOs be able to support the assertion of claims of rights, in or outside the courts? On the other hand, if economic growth falters or slows and social protests grow, how much will NGOs be permitted to give voice to them and help reduce them?
NGOs have come under a variety of restrictions.
In some instances, NGOs have been targeted because they have been receiving foreign funding, like the Open Constitution Initiative (Gong Meng) that was shut down in July 2009. It was unable to register officially as an NGO, and it like other similarly situated NGOs registered as a company, a device that has often been tolerated by the government. However, as a company it was required to pay taxes on its income, which included substantial grants from Yale University, and it was assessed with a huge fine for non-payment. Since then, regulations came into effect in March 2010 tightening restrictions on NGOs: Among other restrictions, independent NGOs must present certificates of registration of foreign donation organizations, and must obtain approval of grants over 1 million yuan.
More recently, in April 2010,one of China’s leading independent women’s rights organizations, the Women’s Legal Research and Services Center, was notified that its affiliation with Peking University was being terminated. The founder of the center, Guo Jianmei, was quoted in the Washington Post article cited above as saying that it was sanctioned because it received substantial funding from the Ford Foundation, took on sensitive cases, and was trying to organize a nationwide network of public interest groups.
Government intimidation tactics are often successful: The founder of the Open Constitution Initiative, attacked in 2009, was quoted recently in an NPR broadcast as saying “We’ll try our best to be less radical and more moderate. If, for example, our protests start getting results, we’ll back off a bit.”
The latest crackdowns reflect only one of various currents in Chinese government policy toward NGOs. A useful analysis by Karla Simon, an expert on China’s NGOs, describes a complex regulatory structure and inconsistent administrative patterns. (Karla W. Simon, Regulation of Civil Society in China: Necessary Changes After the Olympic Games and the Sichuan Earthquake Fordham Int’l L. Journal, vol. 32, 2009, 943) . National law currently requires that each NGO must be registered at a local or national level office of the Ministry of Civil Affairs, and the registration must be approved by a supervisory organization which is responsible for the finances and activities of the NGO. Professor Simon notes a ”continuum” from “government-organized and operated non-governmental organizations (“Gongos”)” toward “unregistered grass-roots organizations which are entirely free from government regulation (but in peril if they do anything the government does not like.)”
Government policy is not uniformly hostile, and according to a “National Human Rights Development Plan” quoted by Professor Simon and issued by the Chinese government in 2009, “[T]he construction and management of social organization will be strengthened to enhance their functions in serving society.” Experiments have been conducted in outsourcing social services and reforming the registration system to move toward doing away with the “dual management” system. (Karla Simon and Hang Gao, Opening the Space: New Developments for China’s Community Organizations)
The number of NGOs has been increasing along with China’s rising prosperity. Under regulations adopted in 2004 that authorized creation of both private and public fundraising foundations, a recent report notes the creation of both large charitable foundations “by wealthy tycoons” and “grassroots” organizations. (“Grassroots Groups Taking Root in China,” Interpress Service)
There are limits that raise issues about the future course of state-society relations. The report quoted above also quoted the chairman of a foundation that aims to foster civil society in China as saying that “we address rights in a circumspect way that is acceptable to both the people and the government.” The reference to asserting “rights” in a manner acceptable to the government provokes an obvious question about the effectiveness of any NGOs that might wish to focus citizens’ attention on rights violations and even mobilize action to strengthen rights by engaging lawyers to represent affected persons in suits in the courts.
In China, lawyers are often restrained from representing clients, especially in class actions, as after the Sichuan earthquake when parents wished to sue and were lawyers prevented from initiating litigation. The courts, too, are limited in their freedom of action, for example when local governments order them not to accept cases brought by peasants objecting to coerced land takings by government-supported developers.
In this regard, it may be significant that when Prime Minster Wen Jiabao was quoted recently as saying that it is necessary to understand the deeper reasons behind the recent spate of vicious attacks on schoolchildren, he spoke of the need for “resolving social tensions, reconciling disputes and enhancing mediation at the grass-roots level.” Mediation is of course one method of resolving disputes, but what about the courts? The reference to mediation is consistent with government and Party emphasis in recent years on encouraging mediation rather than litigation, which has been discussed in an earlier blogpost.
Statements about “reconciling” and mediating disputes are too bland in the face of the social tensions that underlie the recent spate of horrifying attacks on schoolchildren. NGOs that assert claims of right to address sources of social tensions will be restrained if the leadership continues to limit the role of courts. An article just published in The Economist comments: “…if more NGOs are what is needed to relieve China’s social tensions, the prospects now look bleak.”