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Last updated 25 January 2016
Update: The September-December 2015 period saw the continuation of high-level repression of civil society activists with the police raid and investigation of several labor NGOs in the southern province of Guangdong starting on December 3. Of the dozens of people questioned, seven labor activists have been criminally detained on charges ranging from “embezzlement” to “picking quarrels and disrupting social order.” These seven activists have since not been allowed to meet with their lawyers. As with the police actions against the Yirenping network in 2014-15, the detention of the “five feminists” in March of 2015, and ongoing repression against rights-defense lawyers, this repression is not a local action but appears to have higher-level backing and coordination. The detention of the labor activists was followed by a central-level propaganda campaign against the most prominent labor activist, Zeng Feiyang.
There were some positive developments on the regulatory front concerning the Overseas NGO Management Draft Law and the newly released draft of the long-anticipated Charity Law. The Overseas NGO Draft Law - which aroused substantial criticism and concern from Chinese and foreign NGOs, the foreign business community, and foreign governments when it was released in May 2015 for public comment - has been delayed. This delay in the passage of the law suggests that it encountered significant problems after the public comment period. In addition, the first draft of the Charity Law, which has been in legislative limbo for almost 10 years, was finally issued at the end of October for public comment and it leaves room for optimism. In contrast to the Overseas NGO Management Draft Law, the draft Charity Law provides a much more enabling environment for charitable organizations operating in China. An analysis of these two regulatory developments, and a more detailed analysis of the Charity Draft Law, can be found in Shawn Shieh’s blog, NGOs in China.
In addition, two grassroots environmental NGOs won a landmark public interest environmental lawsuit when a court in Fujian province ruled in their favor on October 29, 2015. The defendant was a quarry company engaged in illegal mining that had damaged the surrounding forest. It was the first time grassroots NGOs were allowed to file a public interest environmental lawsuit under the newly revised Environmental Protection Law, which went into effect on January 1, 2015.
These disparate events suggest that the Chinese authorities are tolerating civil society activity in certain areas such as charity and environmental protection, and through legal and judicial mechanisms, but are being much less tolerant about extralegal and extrajudicial actions such as street protests, public advocacy and labor organizing.
Civil society and its accompanying legal framework have become considerably more complex in China in recent years. The range of nonprofit, philanthropic and other social organizations (hereafter, civil society organizations or CSOs) has expanded rapidly, as have their fields of activity, including their partnerships with the government and business sectors. CSOs of various kinds are moving gradually but steadily from the margins of society into the mainstream.
Management of the emerging civil society sector by Communist Party and state agencies remains restrictive but also has been unable to keep up with the growth of CSOs. As Yu Keping, a well-known scholar who has written extensively on civil society, points out, the actual space for CSOs in China is much larger than the institutional space allowed by formal laws and regulations [ENDNOTE: “Civil Society in China: Concepts, Classification and Institutional Environment” in Deng Zhenglai, ed., State and Civil Society: The Chinese Perspective (Singapore: World Scientific, 2011)].
Many CSOs in this space are managed in a considerably less intrusive way than others. These include a large number of organizations that provide social services or conduct other work that the state supports and that are not perceived as threats to the state. But groups engaged in advocacy, legal aid, labor rights and religion are often more closely monitored by Party and state authorities. Over the years, a number of organizations have been harrassed and even closed down, and many civil society activists (including lawyers, journalists, academics, bloggers) have been detained, tried and imprisoned for their peaceful activities.
The legal framework to manage this highly differentiated process of state control – in which some organizations are supported and facilitated and others are repressed – has its origins in China’s 1982 Constitution and in an array of regulatory documents promulgated and enacted since the late 1980s. These regulate the full range of legally-registered non-profits which the Chinese refer to generically as "social organizations" (shehui zuzhi, 社会组织) "Social organizations" are separated into three major categories: social organizations (shehui tuanti, 社会团体) which are the equivalent of membership associations and include many trade and professional associations; civil non-enterprise institutions (minban fei qiye danwei, 民办非企业) which are the equivalent of nonprofit service providers; and foundations (jijinhui, 基金会). China is a civil law jurisdiction with very strong political and executive authority; judicial activity plays very little role in the treatment of civil society groups.
In an effort to improve its regulatory capacity and coordination with CSOs, the government has since the late 2000s begun to revise the legal framework governing CSOs, fundraising and charitable donations, and worked with local governments to carry out experiments in these areas that will inform national legislation. It has also made "social management innovation" [shehui guanli chuangxin] a focal point of its 12th Five Year Plan (2011 - 2015). "Social management innovation" here refers to improving the party-state's ability to manage and coordinate with a range of CSOs and other non-state actors to address common goals. In recent years, there has been a flurry of activity among local governments across China to “innovate” by lowering barriers to CSO registration, contracting social services to CSOs, building programs and platforms to coordinate, support and incubate CSOs, and creating more detailed regulations and standards to guide the development of the CSO sector.
The administration of Xi Jinping, who became president of China in March of 2013, reaffirmed these reforms in the important November 2013 Third Plenum Decision of the 18th Central Committee. Instead of “social management innovation”, the Decision used the term “social governance,” which was seen as a favorable sign because it emphasized the state’s partnership with CSOs in governing, rather than its management of CSOs. Months before the Decision came out, however, the new administration had already embarked on a sustained clampdown on certain elements of China’s civil society. This move sent a signal that any reforms were intended to apply to certain categories of CSOs, such as social service provision and economic and trade associations, but not necessarily to civil society actors engaged in advocacy, ethnic minority affairs, religion and other more sensitive areas.
Taken together with other policy statements and actions, these seemingly contradictory initiatives can be seen as part and parcel of a broader effort to rectify and rejuvenate the party and society in order to strengthen the party-state and its relationship with the masses. Thus, the Xi administration is also launching an unprecedented anti-corruption campaign that has ensnared high-level leaders such as Bo Xilai and Zhou Yongkang, a campaign to encourage ideological orthodoxy in state agencies, universities, the media and the blogosphere, and a rule-of-law campaign emphasizing greater adherence to rules both inside and outside of the Party. These campaigns are overlaid with a veneer of nationalism that stresses the importance of national sovereignty and security and reflects both China’s growing power in the world and its growing insecurity as it faces more “mass incidents” inside its borders and renewed territorial challenges on its periphery in places like Xinjiang, Tibet, the South China Seas and Hong Kong.
CSOs, in short, have been caught up in the larger struggle by the Xi administration to craft a stronger party and a stronger China. These developments constitute a top-down effort by the party-state to mold a “civil society” in its own image - the party would actually prefer to use a term like “social sector” or “people’s society” - that does not have a strong value preference for what the government perceives as Western-style individual freedoms and rights.
|Organizational Forms||Social organizations (shehui tuanti), civil non-enterprise institutions (minban fei qiye danwei), and foundations (jijinhui). The last category includes two types of foundations: public fundraising and non-public fundraising foundations. In addition, there are many different types of informal CSOs: those registered as businesses; those attached to a legal organization; small community-based organizations; rural cooperatives; religious organizations; and networks..|
|Registration Body||Ministry of Civil Affairs and local Civil Affairs Bureaus|
|Barriers to Entry||
|Barriers to Activities||
|Barriers to Speech and/or Advocacy||The Government has discretion to limit speech and advocacy for specific organizations and types of organizations and for specific cases that might be seen to negatively impact national security.|
|Barriers to International Contact||Organizations are sometimes required to report international contacts to authorities and sometimes to seek approval for visits, international cooperation, foreign donations, etc. They are also discouraged from working with or receiving funding from overseas organizations which are engaged in "democracy promotion."|
|Barriers to Resources||There are restrictions on fundraising and networking. With the exception of public fundraising foundations, CSOs are not allowed to engage in public fundraising. CSO networks are also a sensitive issue. A number of networks have emerged in recent years but they are all informal in nature. Approval is also required for receipt of external resources.
A 2009 regulation requires CSOs to go through more paperwork to transfer donations from overseas organizations into their bank accounts. In May 2014, the newly formed National Security Commission headed by President Xi Jinping ordered an investigation of the operations of international NGOs working in China, particularly in rural areas. As explained below, this review may be seen as the first step to standardizing management of international NGOs in China.
|Barriers to Assembly||Assembly Law and Implementing Measures contain vague and restrictive provisions; 5 days advance notification requirement; spontaneous assemblies not permitted; onerous obligations and liabilities on organizers; excessive time, place, and manner restrictions.|
|Population||1,367,485,388 (July 2015 est.)|
|Type of Government||One-Party State|
|Life Expectancy at Birth||Male: 73.38 years (2015 est.)
Female: 77.73 years (2015 est.)
|Literacy Rate||Male: 98.2% (2015 est.)
Female: 94.4% (2015 est.)
|Religious Groups||Buddhist 18.2%, Christian 5.1%, Muslim 1.8%, folk religion 21.9%, Hindu < .1%, Jewish < .1%, other 0.7% (includes Daoist (Taoist)), unaffiliated 52.2% note: officially atheist (2010 est.)|
|Ethnic Groups||Han Chinese 91.6%, Zhuang 1.3%, other (includes Hui, Manchu, Uighur, Miao, Yi, Tujia, Tibetan, Mongol, Dong, Buyei, Yao, Bai, Korean, Hani, Li, Kazakh, Dai and other nationalities) 7.1% note: the Chinese government officially recognizes 56 ethnic groups (2010 est.)|
|GDP per capita||$12,900 (2014 est.)|
Source: The World Factbook. Washington, DC: Central Intelligence Agency, 2009.
|Ranking Body||Rank||Ranking Scale
(best – worst possible)
|UN Human Development Index||90 (2015)||1 – 182|
|World Bank Rule of Law Index||42.8 (2014)||100 – 0|
|World Bank Voice & Accountability Index||5.4 (2014)||100 – 0|
|Transparency International||100 (2014)||1 – 180|
|Freedom House: Freedom in the World||Status: Not Free
Political Rights: 7
Civil Liberties: 6 (2015)
|Free/Partly Free/Not Free
1 – 7
1 – 7
|Foreign Policy: Fragile States Index
||83 (2015)||178 – 1|
International and Regional Human Rights Agreements
|Key International Agreements||Ratification*||Year|
|International Covenant on Civil and Political Rights (ICCPR)||No||--|
|Optional Protocol to ICCPR (ICCPR-OP1)||No||--|
|International Covenant on Economic, Social, and Cultural Rights (ICESCR)||Yes||2001|
|Optional Protocol to ICESCR (OP-ICESCR)||No||--|
|International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)||Yes||1981|
|Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)||Yes||1980|
|Optional Protocol to the Convention on the Elimination of Discrimination Against Women||No||--|
|Convention on the Rights of the Child (CRC)||Yes||1992|
|International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW)||No||--|
|Convention on the Rights of Persons with Disabilities (CRPD)||Yes||2008|
* Category includes ratification, accession, or succession to the treaty
The Constitution of the People’s Republic of China (1982, as amended) includes the following relevant provisions which relate to the nonprofit, charitable and philanthropic sector:
The People's Republic of China is a socialist state under the people's democratic dictatorship led by the working class and based on the alliance of workers and peasants.
The socialist system is the basic system of the People's Republic of China. Disruption of the socialist system by any organization or individual is prohibited.
All power in the People's Republic of China belongs to the people.
The National People's Congress and the local people's congresses at various levels are the organs through which the people exercise state power.
The people administer state affairs and manage economic, cultural and social affairs through various channels and in various ways in accordance with the law.
The People's Republic of China governs the country according to law and makes it a socialist country ruled by law.
The state upholds the uniformity and dignity of the socialist legal system.
No laws or administrative or local rules and regulations may contravene the Constitution.
All state organs, the armed forces, all political parties and public organizations and all enterprises and institutions must abide by the Constitution and the law. All acts in violation of the Constitution or the law must be investigated.
No organization or individual is privileged to be beyond the Constitution or the law.
The state maintains public order and suppresses treasonable and other criminal activities that endanger state security; it penalizes criminal activities that endanger public security and disrupt the socialist economy, as well as other criminal activities; and it punishes and reforms criminals.
All persons holding the nationality of the People's Republic of China are citizens of the People's Republic of China.
All citizens of the People's Republic of China are equal before the law.
The state respects and guarantees human rights.
Every citizen is entitled to the rights and at the same time must perform the duties prescribed by the Constitution and the law.
Citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.
Citizens of the People's Republic of China enjoy freedom of religious belief.
No state organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion.
The state protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the state.
Religious bodies and religious affairs are not subject to any foreign domination.
The People's Republic of China protects the legitimate rights and interests of Chinese nationals residing abroad and protects the lawful rights and interests of returned overseas Chinese and of the family members of Chinese nationals residing abroad.
Citizens of the People's Republic of China, in exercising their freedoms and rights, may not infringe upon the interests of the state, of society or of the collective, or upon the lawful freedoms and rights of other citizens.
It is the duty of citizens of the People's Republic of China to safeguard the unification of the country and the unity of all its ethnic groups.
Citizens of the People's Republic of China must abide by the Constitution and the law, keep state secrets, protect public property, observe labor discipline and public order and respect social ethics.
It is the duty of citizens of the People's Republic of China to safeguard the security, honor and interests of the motherland; they must not commit acts detrimental to the security, honor and interests of the motherland.
National Laws and Regulations Affecting Sector
Some of the key national laws and regulations affecting the sector are as follows. This list is by no means complete. For additional information, see Ministry of Civil Affairs and U.S. International Grantmaking.
- Constitution of the People’s Republic of China (1982, as amended, see selected provisions above)
- Law of the Red Cross Society of the People's Republic of China (adopted by the Standing Committee of the National People's Congress, October 31, 1993)
- Regulations on the Registration and Management of Social Organizations (adopted by the State Council October 25, 1998, currently in revision)
- Interim Regulations on the Registration and Administration of Civil Non-Enterprise Institutions (adopted by the State Council October 25, 1998)
- Interim Regulations on the Registration and Administration of Public Institutions (adopted by the State Council October 25, 1998)
- Public Welfare Donations Law (adopted by the Standing Committee of the National People’s Congress June 28, 1999)
- Law of the People's Republic of China on Individual Income Tax and Detailed Rules for the Implementation of the Individual Income Tax Law of the People's Republic of China (as enacted in 1999 and later amended)
- Provisional Measures Regarding the Management of Social Welfare Organizations (issued by the Ministry of Civil Affairs, April 10, 2000)
- Trust Law of People’s Republic of China (adopted by the Standing Committee of the Ninth National People's Congress April 28, 2001)
- Non-State Education Promotion Law of the People’s Republic of China (adopted by the Standing Committee of the Ninth National People's Congress December 28, 2002)
- Circular of the Ministry of Finance on the Relevant Issues Concerning the Preferential Taxation Policies for the Poverty-Relief and Charity Donation Materials Imported for the Purpose of School Education. (issued by the Ministry of Finance, March 10, 2003)
- Regulations on the Management of Foundations (adopted by the State Council March 8, 2004, currently in revision)
- Regulations on the Administration of Names of Foundations (issued by the Ministry of Civil Affairs June 23, 2004)
- Accounting System for Nonprofit Organizations (issued by the Ministry of Finance September 2004)
- Reply of the State Administration of Taxation on Tax Exemption of 33 Permanent Representative Offices of Foreign Enterprises, such as the Beijing Representative Office of the Ford Foundation (issued by the State Administration of Taxation June 11, 2004)
- Measures for the Information Disclosure of Foundations and Measures for Annual Inspection of Foundations (issued by the Ministry of Civil Affairs January 12, 2006)
- Enterprise Income Tax Law of the People’s Republic of China; Provisional Regulations of the People's Republic of China on Enterprise Income Tax and Detailed Rules for the Implementation of the Provisional Regulations of the People’s Republic of China on Enterprise Income Tax (as enacted in 2007 and as amended)
- Notice of the Ministry of Finance and the State Administration of Taxation on the Policies and Relevant Management Issues Concerning the Pre-Tax Deduction of Public Welfare Relief Donations (promulgated January 18, 2007)
- Measures for the Administration of Donations for Disaster Relief (issued April 28, 2008)
- Notice of the State Administration of Foreign Exchange on Issues concerning the Administration of Foreign Exchange Donated to or by Domestic Institutions (issued by the State Administration of Foreign Exchange December 25, 2009)
Pending NGO Legislative / Regulatory Initiatives
1. Positive Developments regarding the Overseas NGO Management Law Draft and the Long-Awaited Charity Law (November 2015)
In a difficult year for civil society, there were two positive developments at the end of 2015. One is that the Overseas 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 were released at 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, 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. The delay suggests that the many comments on the draft law from both the foreign NGO and business communities 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 in September, 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, sources say there is considerable dissension among various Chinese government agencies over this draft law. In short, there seem to be enough problems and controversies to delay this draft law. If it is reviewed again in 2016, it may contain some significant revisions.
The second piece of good news is the long-awaited arrival in October of the first draft of the Charity Law for public comment. ChinaLawTranslate has provided a preliminary English translation, and China Development Brief will have a more precise translation shortly. This law has been in the legislative pipeline since 2005.
Brief Review of the Draft Charity Law
The Charity Law draft, on the whole, provides a positive, enabling environment for charitable organizations. What follows is a critical discussion of the draft.
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, it would have to be seen how this law is implemented, but the language would theoretically allow for work on HIV/AIDS, labor, and legal advocacy to be considered charity. That would be a significant positive step 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 the Ministry of 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 leave the possibility that other laws such as the Overseas NGO Management 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, and community organizations, among others. Given that the Overseas NGO Management Law and other related regulations are 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.” This clause essentially says that unregistered NGOs should not be considered illegal and should be allowed to carry out charitable activities. That is a significant step forward from deeming such NGOs as illegal, and it 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 serve an important societal purpose.
To these positive highlights, Professor Anthony Spires of the Chinese University of Hong Kong adds a few more 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 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 and NGOs to come together to form networks and associations that can represent their interests and help 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), which 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.
Second 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.
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. Here are a few of the major issues:
1) Chapter 3 of the draft addresses Charitable Fundraising and, following past practice, separates charitable organizations into two classes: public fundraising (公墓) and non-public fundraising (非公募). The former are allowed to fundraise through public channels such as television, radio, newspapers, collection boxes in public spaces, charitable performances, sales, competitions, gala dinners, etc. The latter are only allowed to accept private gifts and donations. Articles 25-26 in this chapter allow 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 which are GONGOs or NGOs with government connections) are grandfathered in, while other organizations have to prove their credentials. 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” organizations and have government connections.
It should also be kept 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 Ministry of Civil Affairs authorities will only consider violations of this Charity Law rather than other existing laws and regulations; still, the authorities’ selective application of laws and regulations to silence organizations doing more sensitive work should be considered; 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 regarding which tax laws and regulations apply; this is an unclear area not only to charitable organizations but also to tax authorities. Much 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 satisfy. More emphasis should be placed on self-discipline and self-regulation, 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.”
In conclusion, the Charity Law draft is a promising piece of legislation. Too often, laws and regulations are issued that aim 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 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."
2. New Regulations in Guangzhou
Toward the end of October 2014, two interesting regulations emerged in Guangzhou, the capital of Guangdong province, which has been the pacesetter for creating a more hospitable environment for NGO operations. One of these regulations was a draft of “Regulations Concerning Banning Illegal NGOs,” which was released on October 16 for public comment. This draft regulation sparked quite a bit of public comment and controversy and led to meetings between academics, Guangzhou officials, lawyers and NGOs to revise the regulation. The other regulation was the new “Guangzhou Measures for Administering Social Organizations” that lowers barriers for the registration and operation of certain categories of NGOs.
Other key pending legislative and regulatory initiatives at the national level include:
- Revision of the Regulations on the Registration and Management of Social Organizations (originally promulgated in 1998);
- Revision of the Interim Regulations on the Registration and Administration of Civil Non-Enterprise Institutions (originally promulgated in 1998);
- Revision of the Regulations on the Management of Foundations (originally promulgated in 2004);
- Further detailing the framework for nonprofit tax status and deductions; and
- Other legislative and regulatory initiatives, mostly under the aegis of the Ministry of Civil Affairs and the national tax authorities.
Over the last few years, there have been important local policy experiments in the Chinese nonprofit and philanthropic sector, mostly at the provincial level. These policy experiments are important because they provide the central authorities with policy ideas and experiences that play a role in shaping national-level legislation. They therefore serve as harbingers of changes in national-level legislation. In July 2009, for example, the key regulator of charitable and philanthropic organizations, the Ministry of Civil Affairs, announced a Cooperative Agreement on Advancing Integrated Reforms in Civil Affairs with the municipal government of Shenzhen, a major economic area in the southern province of Guangdong and China’s original special economic zone.
Under the Cooperative Agreement, Shenzhen will serve as an “experimental site” for reforms in a wide range of civil affairs for assessment by the Ministry of Civil Affairs and other government agencies. Shenzhen is the largest Special Economic Zone in China and located in the southern province of Guangdong which borders Hong Kong. Shenzhen's reforms include new steps in the registration and management of social organizations, including allowing certain categories of social organizations to register directly with the Shenzhen Civil Affairs Bureau without the sponsorship of a professional supervisory agency (normally a government agency). Under the old "dual management" system, social organizations were required to find a supervisory agency as a sponsor before they were allowed to register.
Such steps mark the first real potential reforms in the “dual management” structure of Chinese social organizations in several decades. The Cooperative Agreement also allows Shenzhen to take over regulatory jurisdiction over domestic and foreign foundations based in Shenzhen; reform and expand government contracting with social organizations to provide social services; develop new measures to encourage charitable giving (including potential new tax incentives at the local level); and reforms in other areas of civil affairs. Activities under the Cooperative Agreement will be carried out from 2009 to 2015 and continuously assessed by the Ministry of Civil Affairs and other government agencies for potential expansion in other areas of China.
Direct local regulation of social organizations and foundations in addition to national regulation is also starting in other areas of China. Until recently, local civil affairs and other governmental units merely implemented national regulations on social organizations, foundations and other groups without the power to directly regulate at the local level. The power to directly regulate at the local level is, of course, a key step in giving provincial and local authorities real legal authority over the nonprofit sector.
Over the last few years, a few provinces and province-level municipalities have followed Shenzhen's lead and with the blessing of the Ministry of Civil Affair, begun issuing e-formal regulations and other legal documents governing the various forms of charitable and nonprofit groups that are based in or active in their jurisdictions. Jiangsu and Hunan provinces, for example, have issued local-level regulations governing foundations and fundraising. Guangdong, Shanghai, Beijing, Chengdu and other provinces and cities are carrying out their own local legislative experiments governing the registration and management of different categories of social organizations.
Jiangsu led the way in the provincial regulation of philanthropy in October 2007 with the first sub-national regulations on foundations, the Jiangsu Province Interim Regulations on the Supervision and Management of Local Foundations, which have been implemented by provincial measures for approving, inspecting and requiring annual reports from foundations in addition to the national rules on these matters. In an even more important local experiment that is being assessed at the national level (like the Shenzhen measures that are being undertaken under the 2009 Cooperative Agreement) the Jiangsu provincial people’s congress adopted what may be the first provincial regulations on charitable organizations in January 2010. Under the Jiangsu Provincial Regulations on the Advancement of Charitable Activities, Jiangsu is now expected to adopt a range of rules and measures to regulate, encourage and manage its rapidly growing charitable sector.
 Chinese text of the Cooperative Agreement.
 Chinese text of the Jiangsu regulations on foundations
 Chinese text of the Jiangsu regulations on charity
Yunnan has also been experimenting with regulations governing the registration and management of international NGOs in the province. Over the last two decades, Yunnan has become a popular destination for international NGOs and provincial authorities have for the most part welcomed them because of their contribution to the local economy. But the province’s attitude has changed in recent years as they face the challenge of managing a growing number of international and domestic nonprofits that are not registered with Civil Affairs. In December of 2009, the province issued the first-ever regulations in China specifically governing international NGOs. This development deserves scrutiny because it may serve as a model for future national regulations governing international NGOs. The Yunnan Province Interim Regulations Standardizing International NGO Activities provides international NGOs with a way of gaining legal status in the province through a registration process known as bei’an ors depositing their file on record with the provincial Civil Affairs Department. Interviews with NGOs in Yunnan indicate that the regulations are being welcomed by international NGOs which have been operating in China for years without legal status. At the same time, the regulations are also requiring international NGOs to submit to much more paperwork and control and discouraging some partnerships between international and Chinese nonprofits. As part of the registration process, international NGOs are required to report and get approval for every project they operate in the province and for every partnership they engage in with Chinese nonprofits.
Of all the local experiments, Guangdong province’s have been the boldest and garnered the most attention because of its size and importance in the national economy. In November of 2011, the Guangdong Civil Affairs director announced that the province would be making it easier for several different categories of social organizations (social services, charitable organizations, etc.) to register by doing away with the professional supervising agency requirement. The province would also decentralize the authority to register social organizations to the township and subdistrict levels of government, open up the space for trade associations by allowing more than one association per sector, and encourage more government purchasing of services provided by social organizations. If implemented, the Guangdong regulations would be the most liberal in the country, and serve as a bellwether for similar changes in the national regulations governing social organizations.
Guangdong’s reforms have been actively promoted by the province’s top leader, party secretary Wang Yang, who is a member of the Politburo, and mentioned as a candidate for the Politburo Standing Committee – China’s most powerful decision-making body - when it changes its leadership in the fall of 2012. Wang Yang is generally seen as a more liberal-minded leader due in part to his public position in support of nonprofits.
The Minister of Civil Affairs, Li Liguo, recently was quoted endorsing the Guangdong reforms raising expectations that the more Guangdong model will be used as the blueprint for revisions to the national-level regulations governing registration and management of social organizations. In addition, other news out of Guangdong shows that the reforms are expanding and making their way down to the local level. Recently, Guangdong announced it would also relax restrictions on fundraising for nonprofits, and interviews with Guangdong NGOs and academics indicate that Guangdong will also be issuing more favorable regulations governing the tax deductibility of charitable donations.
The Fate of the Charity Law and Other National-level Legislation: A Periodical Analysis
While local legislation has been making significant headway, national-level legislation appears to be on hold. The long-awaited revisions to the regulations governing the registration and management of social organizations, and the Charity Law, have both been delayed, despite rumors that their passage is imminent. The Charity Law, in particular, received a boost in 2011 due to a series of scandals that enveloped the charitable foundation sector. One example was the Guo Meimei incident that implicated the Chinese Red Cross and exemplified the lack of transparency and accountability in China’s philanthropy sector. These scandals raised awareness among both government leaders and society of the pressing need for a Charity Law to regulate philanthropy and fundraising.
Late in 2011, it was announced that the Charity Law was included on the legislative plan for the 11th National People’s Congress (NPC) Standing Committee for 2011. The reports note that the NPC generally agrees with the content of the Ministry of Civil Affairs draft legislation and asks the State Council Legal Affairs Office (the State Council is the highest executive body in the Chinese government) to review the legislation and submit it to the NPC for consideration. Given that the Charity Law was also included on the 2010 legislative plan, and has been with the State Council for some time, it is difficult to know whether this announcement represents any significant progress in the Charity Law’s passage. Certainly, the significantly increased public scrutiny and discussion over this last year of problems and scandals in the philanthropic sector has placed more pressure on lawmakers to get the Charity Law approved. But given the legislative logjam in the State Council, it is difficult to know when the Charity Law will be reviewed and sent to the NPC for approval.
The Guangdong and Yunnan Experiments in 2012
In early 2012, Guangdong province was still in the news as the trailblazer in reforming the registration and management system for nonprofits. In January, provincial authorities announced that by July 2012, they would eliminate what has been the main obstacle to nonprofit registration: the requirement to find a professional supervisory unit that would sponsor the nonprofit. They also announced a series of other measures that made Guangdong the most open province with regard to nonprofit registration and management. This push for a more open environment for nonprofits has been credited to Guangdong's top leader - provincial party secretary Wang Yang who is also a member of China's Politburo and possibly may enter the Politburo Standing Committee - Yang has come out publicly to state his support for nonprofits and criticize local bureaucrats for not making it easier for nonprofits to register.
Since then, the Minister of Civil Affairs has come out endorsing the Guangdong reforms, raising expectations that the long-awaited national-level revisions to the nonprofit registration and management regulations would incorporate the Guangdong measures.
These recent developments that can be seen as a continuation of the CCP's emphasis on "innovative social management" in the 12th Five Year Plan (2011-2015) issued last year. Innovative social management refers to the government carrying out innovations in the way it regulates or manages society and societal organizations (China's term for nonprofits).
With regard to the government's regulation of social organizations, two distinct trends can be observed. One involves lowering barriers to social organization registration and fundraising. The other involves standardizing management of social organizations.
We can see the first trend in the local-level experiments in Guangdong and other localities that will allow a social organization to directly register with Civil Affairs without first finding a professional supervising unit (generally a government agency or parastatal organization authorized to serve as a supervising unit) willing to sponsor it. Recently, the city of Guangzhou (the provincial capital of Guangdong) announced it was also going to be removing restrictions on fundraising for social organizations. For most of China, other than the Red Cross and public fundraising foundations, social organizations in general are not allowed to fundraise publicly. The Guangzhou announcement is consistent with what scholars in Guangdong have told me about more planned reforms in line with relaxing restrictions over fundraising and strengthening the tax-exempt status for social organizations. Together with the registration issue, the issues of fundraising and tax-exempt status pose some of the biggest obstacles for China's social organizations. The Guangzhou announcement shows that Guangdong is clearly taking the lead in lowering barriers for social organizations.
Other localities appear to be following Guangdong's lead. Recently, Shanghai announced it would be carrying out similar experiments with registration this year.
The second trend of standardizing the management system can be seen in Yunnan province's efforts to standardize management of international NGOs, and the recent information disclosure guidelines issued by the Ministry of Civil Affairs for charitable donations. This standardizing trend is often justified in the name of strengthening and professionalizing the nonprofit sector, but it can also be interpreted as an effort to strengthen government control over social organizations.
Two recent announcements fall into this category. One issued by Beijing Municipality's Civil Affairs bureau is to establish a human resource system for social organizations. The bureau hopes that this move will help to raise the salaries of social organization staff and promote the professionalization of the nonprofit sector.
The other is a notice issued by the Ministry of Finance and Ministry of Civil Affairs which calls for major charitable projects to be audited after their completion, and the results of the audit made public. The Notice applies to major projects undertaken by foundations, representative offices of foreign foundations and public welfare social organizations that qualify for tax-exempt charitable donations.
We should expect both of these trends to continue in the coming months and years, as the government at both central and local levels wrestles with how to better manage social organizations. One area to watch is whether the second trend will raise more barriers to social organization activity, in the name of standardization, and thereby counteract the first trend which seeks to lower the barriers.
In February and March 2012, there was more news of reforms lowering barriers to social organization activity in other regions and sectors. An Opinion was issued by national-level agencies allowing religious organizations for the first time to establish foundations, social service organizations, and nonprofit hospitals. Yunnan province also announced it would follow the lead of Guangdong and other provinces and cities that are experimenting with a system that would allow social organizations to register directly with Civil Affairs without needing approval from a professional supervising unit. Professional supervising units would be renamed professional guidance units under this new system, although it is unclear exactly what this means in practice.
At the same time, another news item shows how far China has to go in improving the regulatory environment for social organizations. This article is about Wang Ming, the director of the Tsinghua NGO Research Center and a member of the China People's Political Consultative Conference (CPPCC), proposing a motion at the CPPCC's annual meeting to carry out more favorable tax policies for non-public fundraising foundations and social organizations, and to promote more government contracting to grassroots social organizations. He mentions that the Beijing government had allocated 100 million yuan to purchase services from social organizations for 2010, but because many grassroots organizations did not meet the qualifications for contracting, only about 50 million was disbursed. The article also mentions a related story in the news recently: the continued difficulties that Beijing Huiling, a long-standing grassroots organization serving youth with disabilities, is having getting registered as a social organization in Beijing. Together, these stories illustrate that policy reforms by themselves are insufficient. Those policies have to be carried out and enforced in ways that actually benefit China's many grassroots organizations, and allow more resources to flow to them.
For summaries of all articles, see China Development Brief's A View from the Top
Two other news items that are not directly related to social organizations should be mentioned. One is the news coming out from the National People's Congress' (NPC) annual meeting held in early March that the Criminal Procedure Law will be amended. The earlier amendment was controversial because it allowed police to detain, arrest or hold suspects for surveillance without informing their families. At this NPC session, that amendment was revised to remove the clauses permitting arrest or surveillance of suspects without informing family members. Police must now inform the suspect's family within 24 hours after arrest or surveillance. But police will still be allowed to detain suspects without informing family members. The amendment also clarifies that confessions extorted through illegal means such as torture should be excluded from evidence during a trial.
The other news has to do with the removal of Bo Xilai as Party Secretary of Chongqing Municipality in late March. Aside from the implications this has for China's leadership transition in the fall, Bo's removal also calls into questtion the Chongqing model which has gottn so much play in the media. More relevant for our purposes, the fall of the Chongqing model should strengthen support for the Guangdong model championed by Wang Yang, the Guangdong Party Secretary who was seen as a rivel of Bo's in getting a seat in China's Politburo Standing Committee. As noted above, an important part of the Guangdong model is a more liberal approach to regulating social organizations.
Several news articles during this period offer a more sobering assessment of developments in the nonprofit sector, or the “charitable” or “public welfare” sector as it is commonly referred to in the Chinese press and official documents. These articles highlight an effort by the Chinese government to cultivate and promote social organizations that are “safe” and enjoy close ties with the government.
One example is a recent initiative by the Beijing Civil Affairs Bureau asking civil servants to gradually withdraw from the charitable, public welfare organizations to ensure the voluntary and social nature of these organizations. A number of civil servants currently work in GONGOs that operate in the charitable sector, and would gradually withdraw from these organizations through different measures though no specifics are given. This initiative can be seen as an effort by the government to cultivate “safe” charitable organizations that look like NGOs or nonprofits, yet retain close ties with the government.
Another example comes from an article about a meeting at Tsinghua University attended by two officials heading the NGO Management office within the Ministry of Civil Affairs. The officials are not optimistic about new national regulations for registration and management of NGOs that have been expected to be issued for some time, and proposed another tack by calling both for direct registration of NGOs and establishing party groups within NGOs. Their unstated hope, it seems, is that the latter measure, which has been attempted before without much success, would help to comfort conservative interests that fear losing control over NGOs.
A third example comes from a 2011 document issued by the Central Committee and State Council that calls attention to the government’s effort to encourage public institutions to join the public welfare sector as social actors. Public institutions are part of the “system”. While they lack the coercive power of government agencies, they do receive financial support from the government budget and their staff enjoy administrative rank and privileges in varying degrees. This document shows that public institutions are now being encouraged to compete as quasi NGO-like organizations in an increasingly crowded public welfare sector with GONGOs and grassroots NGOs.
Taken together, these three examples, along with the recent push to promote approved social work agencies that can bid on government contracts, show that the government is making a concerted effort to cultivate a class of coopted social organizations that appear on the surface to be voluntary and independent, yet in reality enjoy close ties with the government.
For summaries of all these news articles, see China Development Brief's A View from the Top
April/May 2012: The Ministry of Civil Affairs and Guangdong Move Forward
This month saw both the Ministry of Civil Affairs (MOCA) and the trailblazing province of Guangdong moving ahead with new initiatives.
At the national level, the Ministry of Civil Affairs (MOCA) continues to look for ways to promote reforms in the public interest sector. In April, the Ministry of Civil Affairs issued a draft of supplementary regulations entitled “Some Regulations Concerning the Standardization of Foundation Behavior” for public comment. In the public comment period, a number of foundation leaders and scholars praised the regulations for clarifying how foundations should receive and use donations, allowable methods for increasing the value of foundation assets, and information disclosure standards. But they were also critical of certain clauses in the regulations. One was the clause that restricted foundations from giving to for-profit organizations. It was pointed out that many nonprofit organizations in China are registered as businesses. Another was the clause specifying that foundation staff salaries and office administrative costs be kept under 10 percent of foundation expenditures, which was cited as being overly restrictive and preventing foundations from attracting qualified, professional staff.
According to the Minister of Civil Affairs, Li Liguo, these supplementary regulations are meant to clarify existing regulations and documents such as the information disclosure guidelines issued by MOCA in December of 2011, and the 2006 Measures for the Information Disclosure of Foundations. They can be seen as another effort by MOCA to respond to the recent media stories and public criticism over various scandals and problems in the charitable sector by taking faster action in promoting greater openness and transparency in the sector. These initiatives should also be seen in the backdrop of the 12th Five Year Plan which calls on government agencies to undertake “social management innovations” to better harness the power of social organizations. Minister’s Li’s recent comment on May 8 about giving political and human rights NGOs equal treatment can also be seen as part of MOCA’s public campaigning. In other words, his comment was more rhetorical than substantive and was met with skepticism from those in the NGO community.
In Guangdong, the provincial capital of Guangzhou announced potentially pathbreaking fundraising regulations that will go into effect on May 1 of this year. Under the new regulations, social organizations (社会团体), civil non-enterprise units (民办非企业) and nonprofit public institutions (事业单位) will be able to fundraise publicly. The first two categories are legal NGOs registered with Civil Affairs. Special mention was made of organizations supporting the elderly, disabled, solitary and poor individuals, and disaster relief. These regulations will have the effect of breaking the monopoly that GONGOs, in particular public fundraising foundations, have had on public fundraising in China.
The Guangzhou Civil Affairs bureau sees this regulation as a major step in promoting a more open public welfare system rocked by scandals that hit GONGOs last year. According to local authorities, the idea is to create more market competition between public interest organizations.
Some caveats apply. The principle of territoriality applies to these regulations. Specifically, the Guangzhou regulation only applies to organizations registered in Guangzhou and limits fundraising to Guangzhou municipality. Authorities also revealed that a similar regulation for Guangdong province is forthcoming.
In terms of process, the Guangzhou fundraising regulations specify that the organization will have to submit a fundraising proposal and if approved, will have a three month period in which to fundraise for a project. If the organization needs a longer period of time, an extension can be applied for.
June 2012: Two Steps Forward, One Step Back?
This month saw more policy changes emanating from the provincial governments in Beijing and Guangdong as the central and local governments adopt various partial measures in the absence of more up-to-date, comprehensive, national laws and regulations. The latter would include the Charity Law, and the revised regulations governing the management and registration of social organizations and foundations, which have been held up for years. In June, the Beijing Civil Affairs Department announced its “Measures for Managing Seminars, Forums and Activities Organized by Social Organizations.” According to the Measures, organizations must not pose as “social organizations” to organize seminars and forums, or charge fees. Legal social organizations should also report to their professional supervising units the content, goals, size and scope, place, time, source of funding, etc. of seminars and forums they intend to organize. At the end of May, the Guangdong government issued “Provisional Measures for Government Procurement of Services from Social Organizations” to encourage social organizations to bid for government projects to provide social services.
Whether these local policy changes will really benefit the more grassroots, independent social organizations such as NGOs, however, is still an open question. There are small signs of progress. For example, Guangzhou reported that 24 social organizations have already been able to take advantage of the new registration policy that went into effect on May 1, and register directly with the city’s Civil Affairs Bureau. Guangzhou also reported that four social organizations have taken advantage of the city’s new fundraising regulations that also went into effect on May 1, and have applied and received permission to engage in public fundraising for their projects.
But many NGOs are still waiting on the sidelines, raising a number of questions and concerns about the new policies. In the report on Guangzhou’s new fundraising regulations, it was noted that many grassroots NGOs may not be able to meet the fundraising requirements, let alone the registration requirements. Similarly, the reports on government procurement of services from social organizations in Guangdong cautioned against being too optimistic. They asked whether grassroots NGOs will be able to compete on a level playing field with GONGOs, when government departments are the ones deciding the bids and evaluating the projects. Moreover, for grassroots NGOs to be able to compete, they will need help from supporting organizations that can help these NGOs build capacity in order to meet the government requirements. One social activist suggested setting up a unified procurement system in which government departments are not directly involved in the bids, and that the government entrust a few foundations to manage bidding to smaller NGOs, and open bidding to both registered and unregistered NGOs.
There is also a concern that the emphasis of these policies will be more on “social management” and less on serving and supporting social organizations. One article in the People’s Daily, the Communist Party’s flagship paper, drove this point home when it argued that making it easier for social organizations to register does not mean the government should relax its supervision over these organizations. One example of this position might be found in the Beijing Civil Affairs Department’s “Measures for Managing Seminars, Forums and Activities Organized by Social Organizations” mentioned earlier.
Two other developments in the labor sector in Guangdong bear watching. One is the closing of Zhang Zhiru’s labor NGO, Dagongzhe. It’s still unclear at this point why the NGO was closed and whether it will be allowed to re-open. It is also unclear whether this is part of a general crackdown on labor NGOs, or as appears more likely, only an isolated instance.
The other news coming out in mid-May is the creation of a Federation of Social Service Organizations for Guangdong Workers under the Guangdong All-China Federation of Trade Unions (ACFTU). The idea seems to be to use Party-controlled “mass organizations” such as the ACFTU to create a legitimate platform for labor NGOs to provide services to workers. (This has been tried in Beijing but with little success.) In turn, the ACFTU will have a hand in supporting and supervising these NGOs. It may be an intermediate step for labor NGOs to gain legal registration, but can also be seen as a way for the state to coopt labor NGOs.
In other related developments this month that may affect the civil society sector, the State Council Information Office issued its second human rights plan -- Human Rights Action Plan (2012-2015) -- that emphasizes the following rights:
- Right to Know, which includes promoting disclosure of unclassified government information.
- Civil Rights – more safeguards for detention and torture, including forbidding the use of extortion and other illegal means to gain confessions and other information.
- Environmental rights – strengthening heavy metal and water pollution prevention and controls, and monitoring air quality, including PM2.5 particulate matter.
- Rights to expression – strengthening the petitioning and complaints system, and the rights of journalists and media organizations.
- Rights to fair trial – strengthening procedures and review for death penalty cases, and for gathering evidence.
- Right to social security – focusing on housing security, raising the minimum wage, expanding health coverage to urban residents.
July 2012: More Local Initiatives
July saw more news coming from Guangdong, Nanjing and Beijing, all having to do with different local approaches aimed at lowering the barriers to registration for NGOs (or “social organizations” using the Chinese terminology.) In Guangdong, questions were raised about the implementation of a new regulation aimed at allowing social organizations to register directly given recent developments in the labor sector.
One new development is the crackdown on several labor NGOs registered as businesses, such as Zhang Zhiru’s labor NGO, Chunfeng Labor Dispute Services Agency. In some cases, this crackdown has taken the form of the landlord telling the NGO the lease is up. In more blatant cases, such as the Shidai Women’s Labor Agency, local government agencies came to inspect the NGO and informed them they would have to close.
The other development mentioned is the creation of a Federation of Social Service Organizations for Guangdong Workers under the Guangdong All-China Federation of Trade Unions (ACFTU). The idea here seems to be to use Party-controlled “mass organizations” such as the ACFTU to create a legitimate platform for labor NGOs to provide services to workers. This arrangement is described as an intermediate step for labor NGOs to gain some form of legal recognition (in Chinese, the term used is bei’an or document filing system) that may eventually help them legally register.
Labor NGOs in China have generally been seen as sensitive, which has caused observers to question whether they would be treated the same way as less sensitive NGOs and be allowed to register directly under the new Guangdong regulations. These new developments suggest that local authorities may be trying to push labor NGOs into a more regulated, supervised space.
In Nanjing, the city’s Civil Affairs Department announced it would lower the registration requirements for social organizations, such as lowering the registered capital requirement from 30,000 yuan to 5,000 yuan. In addition, the Nanjing City Civil Affairs Department will devolve the authority to register and manage three categories of social organizations (charitable, social welfare and social service) to the district/county level.
Beijing will explore ways to lower the registration threshold for social organizations by carrying out a document filing system (bei’an) which will allow grassroots organizations to file with designated “hub” (shuniu) social organizations. Since 2009, 27 “hub” organizations were approved for various sectors such as labor, youth, women, and law. For example, the All China Federation of Trade Unions would be the hub organization for labor, the All China Youth Federation would be the hub for youth, and so on. The idea is to have these “hub” organizations essentially serve as the “professional supervising units” for grassroots organizations, thereby making it easier for the latter to register at a later date. In reality, this experiment has been difficult to implement because “hub” organizations do not necessarily want to take on this additional responsibility, and because of coordination difficulties between these “hubs” and Civil Affairs offices.
August 2012: More Incremental Measures
Various incremental measures appeared in August to clarify and regulate different aspects of NGO and foundation work. As with previous initiatives in 2012, most of these measures can be seen as stopgap measures carried out in the absence of more fundamental reforms that have been put on hold with delays in the Charity Law and the revision of the various measures for the registration and management of social organizations.
In mid-July, the Guangdong provincial government issued the “Provisional Measures on Government Procurement of Social Organization Services,” clarifying the scope, procedures, and funding arrangements for government procurement of social organization services. The main sectors covered by these Provisional Measures are education, sanitation, culture, community affairs, care for the elderly and disabled, industry accreditation and auditing, scientific research, law, and policy research. An important issue will be finding an independent third party institution that can evaluate the social organization’s performance without interference from the government.
At the end of July, the Ministry of Civil Affairs issued “Selected Regulations Standardizing the Behavior of Foundations (Trial)” (hereafter “Selected Regulations”) to standardize the behavior of foundations in the following areas: receiving and using donations; transactions, cooperation and increasing the value of foundation assets; and public disclosure of information.
The Selected Regulations contain revisions based on public comments solicited from an earlier draft. One clause that attracted comments was the one that stated that “foundations should not fund for-profit organizations.” Since many of the more grassroots NGOs are registered as businesses, some observers felt that clause would prohibit foundations from funding these “business-registered” NGOs. In response to this concern, that clause was changed to read “foundations must not fund activities with a for-profit goal.”
In early August, the State Council issued “Views on the Promotion of the Work and Development of the Red Cross Society.” This document is clearly a response to the scandals that took place in the Red Cross last year and can be seen as an effort to strengthen accountability and transparency in the Red Cross. It calls for centralizing the Red Cross so that local Red Cross offices are more closely tied to the higher level Red Cross office, rather than to the local governments, in terms of supervision and guidance. It also talks about the importance of strengthening transparency, and details plans for the Red Cross to build a new online platform to track donations.
September 2012: Grassroots NGOs Have a Long Way to Go
The news coming out this last month illustrates just how much the playing field is stacked against grassroots NGOs, even as reforms are carried out at the local level that in theory will make life easier for them by lowering barriers to registration and expanding government contracting to NGOs.
The Special Economic Zone of Shenzhen provides a perfect test case. Shenzhen has some of the most liberal regulations in the country regarding NGO registration, and according to one newspaper account, more than 700 of the more than 5,000 registered NGOs in Shenzhen have registered under these more relaxed rules.
Yet the ongoing suppression of some labor groups in Shenzhen has people wondering just how welcoming Shenzhen is to NGOs. The suppression is not a simple across-the-board suppression aimed at all labor NGOs: some labor groups in Shenzhen and the province of Guangdong have been affected, while others have managed to not only avoid the suppression but register as well. The success of some labor NGOs in gaining legal status suggests that professionalization and government relations are two strategies that might help these groups avoid getting closed. Still, the actions taken against some of the labor NGOs serves to highlight the difficulties faced by grassroots NGOs in China.
The discriminatory treatment accorded grassroots NGOs is also borne out by other news accounts. One is about two well-known grassroots environmental NGOs – Friends of Nature and the Chongqing Green Volunteer League – which are carrying out a chromium pollution lawsuit in Yunnan. In a public letter, they call attention to a problem in the Civil Procedure Law which contains an overly narrow definition of plaintiffs authorized to initiate a public interest lawsuit. That definition excludes a category of legally-registered NGO to which many grassroots NGOs belong. The public letter calls on the Civil Procedure Law to be revised to expand the range of plaintiffs to include a wider range of NGOs.
Another story tells how Foshan, a city in Guangdong province, is expanding government contracting to NGOs, but so far only 57 “social organizations” (shetuan) have qualified for government contracts. These 57 social organizations are almost all trade associations and GONGOs. No public interest, grassroots NGOs qualified, in part because of lack of information.
One final story that illustrates the uphill struggle of grassroots NGOs is the travails of the Narada Foundation, one of China’s best known, private foundations. (Narada might not even be considered grassroots because of its size and capacity but, like other grassroots NGOs, it originated from outside the government system.) Narada had started a New Citizen School initiative to invest in schools for migrant children in Beijing, but one of their schools was ordered to close down by the Chaoyang District education authorities without explanation. Narada is currently considering legal action to recover compensation for its investment in renovating the school.
October 2012: More of the Same
At the national level, the Ministry of Civil Affairs continues to draft more detailed supplementary regulations. This month, the Ministry issued a draft of the “Measure for Recording Volunteer Services” for public comment. The draft requires volunteer organizations, public benefit-type organizations, and social service organizations to have a system in place to supervise their volunteers.
At the local level, the southern city of Shenzhen issued a draft of some long-awaited charity regulations for public comment. These regulations are seen as pathbreaking because they include important clauses addressing three of the major obstacles facing social organizations: registration, fundraising and taxation. In addition, they would allow foreign NGOs and individuals to register charitable organizations, something that would be a first in China.
November 2012: Supporting and Micromanaging China’s NGOs – Having It Both Ways?
In the run-up to the 18th Party Congress which opened November 8 and ended November 15 with the announcement of China’s new leadership core, the news falls into two categories of policy trends.
The first of these trends involves policies that are more supportive of social organizations, the official term in China for nonprofits or NGOs. These policies come in different forms. One is the continuation of reforms at the local level to make registration easier for social organizations. This month, much of the news has been about reforms in the wealthy eastern province of Zhejiang, such as the cities of Ningbo and Wenzhou. Another policy involves local governments, in places like Guangdong and Sichuan, setting up special funds to support and incubate social organizations and contract services to social organizations. More localities are financing these special funds using public welfare lottery money. Some environmental NGOs, however, have found that the funds used for purchasing services from social organizations are not sufficient to carry out their projects.
The second trend involves policies seeking to regulate and manage the social organization sector. Both the Ministry of Civil Affairs and local Civil Affairs bureaus are providing ratings to registered social organizations, although it is not clear what goes into creating these ratings. With a 3A-level rating or above from the Ministry, a social organization may receive awards, and is given priority for government contracting. With a 4A-level rating or above, an organization can undergo a simplified process for its yearly inspection. An organization’s rating is valid for a three-year period and is based on a 1000 point rating system.
In addition, the Party has been making efforts to become involved in managing social organizations. The Social Affairs Committee is a newly formed agency under the local Party Committee responsible for social affairs, which includes the development of social organizations. Efforts to establish Party branches and groups within social organizations are ongoing. This trend would mean that both the government and the Party would be involved in supervising social organizations.
It is not clear how the government and Party would coordinate their specific roles and responsibilities, but the involvement of both Party and government bureaucracies in managing social organizations is disturbing. It runs counter to the first trend of supporting social organizations and making it easier for them to operate. Perhaps the Party and government see their efforts to manage social organizations as a good faith, paternalistic gesture to provide guidance and support. But they could also be interpreted as micromanagement, and an attempt to exercise stricter supervision over social organizations. As one article in the People’s Daily, the Communist Party’s mouthpiece, makes clear, “loosening restrictions” over social organizations does not mean authorities should “become lax or complacent.”
Micromanagement not withstanding, some observers have been optimistic about the future for social organizations after the 18th Party Congress. Professor Wang Ming, director of Tsinghua University’s NGO Research Center and one of the leading authorities on China’s NGOs, is bullish on the future for social organizations, noting that the 18th Party Congress continued the same strong support for social organizations expressed at the 17th Party Congress in 2007.
December 2012 – A New Dawn After the 18th Party Congress?
After the 18th Party Congress, Xi Jinping and Li Keqiang, who have been anointed to become the new president and premier respectively (they will assume these positions after the next National People’s Congress in March of 2013), made a number of public appearances that gave observers some optimism that the new leadership will be supportive of reforms strengthening China’s civil society, but this, of course, remains uncertain.
Xi made a trip to the freewheeling southern province of Guangdong to promote the reforms being carried out there. He also spoke on the 30th anniversary of the 1982 revision to the Constitution, calling for officials to do more to protect citizen rights, including human rights, and promote public confidence in the law. "We must firmly establish, throughout society, the authority of the Constitution and the law and allow the overwhelming masses to fully believe in the law," he said. In a separate meeting with HIV/AIDS activists, Li Keqiang called for the government to provide more support, specifically in terms of registration and funding, to grassroots NGOs engaged in combating HIV/AIDS.
Two other developments caught the media’s eye that deserve attention. One is the government’s effort to build a foundation for government contracting to NGOs, and the other is an effort at the local level to create a “hub” system to better support and manage NGOs. The first effort is important because it heralds a new era of state-NGO collaboration, albeit on the state’s terms, and offers cash-strapped NGOs a new source of funding. The second is significant because it represents an effort by the local party-state to bring NGOs under their big tent.
Government contracting to NGOs will receive a big boost with the historic decision by the central government to set up a RMB 200 million (USD 32 million) fund in 2013 to purchase social services from social organizations. In line with this announcement, the Ministry of Civil Affairs has issued a “2013 Project Implementation Plan for the Government Financial Support of Social Organizations' Participation in Social Services,” and the Ministry of Civil Affairs and the Ministry of Finance have jointly issued a set of guidelines about how this fund will be used.
In another development, the Guangdong provincial government, following in the footsteps of an earlier experiment in Beijing, is also putting in place a “hub” system that seeks to use “people’s organizations,” which enjoy close ties to the party-state, as a vehicle for supporting and managing NGOs.
September 2013: On the Eve of the Third Plenum, Are We Seeing a Depoliticization of the NGO Sector?
In the last update on December 2012, we noted the continuation of “social management innovation” initiatives after the 18th Party Congress. The general idea behind “social management innovation,” which is also mentioned prominently in the 12th Five Year Plan (2011-2015), is to encourage the party-state at all levels to be more proactive in reaching out to NGOs (or what the government calls “social organizations”) in addressing common social goals. The party-state recognizes that it cannot address all of China’s daunting social problems and is beginning to realize the value of working with NGOs to provide social services to better “serve the people.”
We are now about two months away from the critical Third Plenum of the 18th Communist Party of China’s (CPC) Central Committee. The Third Plenum has historically been the meeting at which major reforms have been launched. What can we expect for social management innovations in NGO sector after the Third Plenum? Our answer: pretty much a continuation of what we have seen in recent years.
Over the last few years, social management innovations undertaken by the central and local governments have been quickening. Those innovations have generally come in three forms. One is reforms to lower barriers to NGO registration for certain categories of NGOs. A second is the ramping up of government contracting of social services to NGOs. A third is building the capacity and professionalism of NGOs by providing support services and creating standards for the sector. These three areas are interrelated. In order to compete for government contracts, NGOs will need to meet a number of requirements. They will need to be registered, have qualified staff, be able to meet reporting requirements, among other things. Currently, the government is having difficulty finding enough qualified NGOs to bid on social service contracts. Recent measures to ease registration requirements and provide capacity building support for NGOs are therefore meant to enlarge the pool of qualified NGOs.
Since last December, these “innovations” have continued apace as governments, government agencies and even GONGOs at different levels strive to come up with their own initiatives. While the desire to innovate might be thought to be synonymous with the desire to be different, most of these initiatives predictably fall into one of the three forms discussed above. (Perhaps we should not expect anything more from a top-down mandate to innovate?)
In terms of registration reforms, a number of well-placed sources including the State Council, MoCA officials and academics have suggested that the revised national-level regulations for registration of social organizations, which have been eagerly anticipated for a number of years, should be ready by the end of the year. We may then expect to hear an announcement after the Third Plenum about these revised regulations. There have also been high-level signals that regulations for international NGOs will be forthcoming, but we think this is less likely given the sensitivity of international NGOs working in China, though it would be a pleasant surprise.
In addition to the national level, there are reportedly 19 provinces now carrying out trial regulations allowing NGOs to register directly with Civil Affairs. If Beijing and Guangdong are any indication, however, the implementation of these trial measures has not been smooth. In Beijing, many NGOs still are unable to register directly with Civil Affairs. In Guangdong, many registered NGOs still do not get preferential tax treatment. It should also be reiterated that these reforms are aimed at certain categories of NGOs, generally economic and trade associations, public benefit and charitable organizations, and social service organizations. As one commentator stated, political and legal NGOs should not bother applying. The closing down of the Transition Socio-Economic Research Institute (Chuanzhixing) in July would be a case in point.
Regarding government contracting, contracting appears to be quite decentralized and taking place through different agencies. In Beijing, the Social Affairs Committee is carrying out contracting, and Civil Affairs is providing funding for NGOs to hire certified social workers in an effort to professionalize the sector. At the central and local levels, a portion of the Welfare Lottery (gongyi caipiao) is being used to contract social services. Even mass organizations such as the Beijing Federation of Trade Unions are getting into the contracting act. In terms of implementation, it is unclear if there are sector-wide standards and procedures for contracting, and there is a lack of transparency with some claiming government contracting takes place in a “black box”. There are allegations of “rent-seeking” in which “qualified” organizations receive government funding only to outsource it to other social organizations after first taking a cut. Finally, there is a widespread perception that the government tends to contract out to “insider” NGOs such as GONGOs, rather than to grassroots NGOs.
Finally, local governments and party organizations are setting up a number of different platforms and organizations, and proposing more detailed standards and norms for the sector. These include “hub”-style organizations built on the old mass organizations, and incubation bases to offer support and guidance to NGOs and cultivate new ones. One interesting type of “hub” organization which seems new and innovative is the China Charity Alliance which is being created under the auspices of the China Charity Donation and Information Center, a GONGO set up under the Ministry of Civil Affairs. The Alliance’s aim seems to be to promote the philanthropic sector by bringing in business tycoons and celebrities as members. (When this author asked one of the organizers of the Alliance about whether CDB could join, he politely told me that they were only inviting large, influential organizations and individuals.)
So far, so good. The news about the lowering of barriers to registration is welcome, and the NGO sector needs clearer regulation and more support from the government. But then came the spring and summer months of 2013 when activists in central China and Beijing were arrested or detained for calling for government officials to disclose their assets. Following that were detentions and arrests of activists associated with the New Citizen Movement in July, the closing down of the Transition Research Institute, an independent think-tank, and broader restrictions on social media and the overall ideological atmosphere. This year’s crackdown is not an isolated event. If we think back to 2012, we can also recall the harassment of labor NGOs in Guangdong. Clearly the call for social innovation does not always extend to those seeking to innovate from the bottom up.
The expansion of space for NGOs through social management innovations may seem to run counter to the recent crackdown on civil society advocates. But maybe there is a way to reconcile these two seemingly apposite trends. Perhaps what we are seeing is an agreement within the Chinese leadership to depoliticize the NGO sector? Thus the thrust of social management innovation may be to create institutionalized partnerships with NGOs that fall into “acceptable” categories such as social service provision, seeking to guide, support and thereby coopt them. At the same time, the government will not extend the same treatment to more “critical” NGOs and activists engaged in advocacy and more sensitive issues; on the contrary, it will make life more difficult for them.
Recently, one civil society scholar warned against allowing China’s third sector to grow while its civil society diminishes. We should keep these words in mind as we monitor developments in civil society over the next year.
January 2014: The Third Plenum Brings a Chilly Spring for China's Civil Society
The biggest news for the NGO sector in the last few months came in the form of the Decision of the Central Committee of the Communist Party of China on Some Major Issues Concerning Comprehensively Deepening the Reform (中共中央关于全面深化改革若干重大问题的决定) adopted by the Third Plenum of the 18th Central Committee on November 12, 2013. The Third Plenum has historically been the venue at which major policy decisions have been made. The Decision is also seen as the first major policy statement of the new administration of President Xi Jinping. Those in the NGO sector were also waiting to see what the Xi administration’s policy would be toward the various reforms and experiments in the sector over the last few years.
The general verdict about the Third Plenum Decision is quite positive on a number of fronts. Many observers applaud its calls for greater liberalization of the economy and a bigger governance role for the market, private sector and non-state actors, including social organizations, which is the official Chinese term for NGOs. Of course, the actual impact of these broad policy pronouncements will depend on the details of the implementing laws and regulations that follow. Still, as Xu Yongguang of the Narada Foundation argues in one of the more optimistic assessments, there are a number of areas in the Decision that should raise the spirits of those in the NGO sector.
Perhaps most important is a change in tone when talking about the role of society and social organizations in governance. Previous high-level speeches and documents have used the term “social management innovation,” which emphasized the need to manage society and social organizations. The Decision replaced that term with “social governance,” a term which has never been used before in official discourse but one which more liberal-minded advisors have advocated for because it places society and social organizations more on par with government. The notion of “social governance” recognizes that social actors have a part in governance alongside the government and business, and that there needs to be greater cooperation between these different stakeholders if China’s development is to become more sustainable and inclusive.
There is thus an entire section of the Decision (Section 13) devoted to “Making Innovations in Social Governance”. Instead of talking about the need to manage social organizations, that section talks about achieving a “positive interaction between government administration on one hand and social self-management and resident self-management on the other.” It also talks about enlivening the role of social organizations by further separating government from social organizations, encouraging government contracting of services to social organizations, making it easier for social organizations to register, and improving tax preferences for charitable donations. The Decision also calls for social organizations to get involved in cultural and educational activities, and for community-level and social organizations to be consulted on policy decisions and their implementation (although the Decision is vague on this issue).
In short, the Decision not only gives a green light to the reforms and experiments that have been going on in the NGO sector at the local level over the past few years, but also provides a consensus framework (what the Chinese call “high-level design”) for envisioning how those reforms should proceed.
The question now is what actual implementing laws and regulations will come out of the Third Plenum? The Decision opens up a number of very broad areas for reform that need to be fleshed out. How will the separation between government and social organizations take place, and how will the roles and responsibilities of each be clarified and enforced? How will government contracting be carried out and what type of social organizations will be eligible to apply? How will registration be simplified and streamlined and what type of social organizations will be eligible? Complicating these questions is another broad reform being carried out to transform and streamline the government by detaching public institutions from the government system and turning some of them into social organizations. This reform will bring a whole new group of actors into a very fluid, quickly changing NGO sector.
The outlines of some of these implementing policies are starting to become clear. On September 26, 2013, the State Council General Office issued its Guiding Opinions on Government Purchasing Services from Social Actors (国务院办公厅关于政府向社会力量购买服务的指导意见). The State Council’s Institutional Reform and Functional Transformation Plan (国务院机构改革和职能转变方案) also lists three other tasks to be carried out by the end of 2013. One is experiments to separate trade associations and chambers of commerce from their government supervisors so that they can truly play a service function in responding to their members needs. The second is to enable four categories of social organizations to directly register by revising the registration and management regulations for social associations (社会团体登记管理条例), and the other two categories of social organizations by December of 2013. The third is to come up with other specific measures for strengthening and improving social governance.
The revised registration and management regulations have still not been issued, and reports indicate that they are in the final stages of revision, so we can expect them to come out this year, along with other measures related to social governance. This year should then be a busy and fruitful one for the NGO sector on the policy front.
If the Third Plenum Decision was the only major event in the last few months, then Xu Yongguang would be right about a spring thaw for China’s civil society. But this same period has seen other events cast a chill on the coming spring. These include a clampdown on prominent bloggers, the arrest of Xu Zhiyong, Wang Gongquan and others involved in the New Citizen Movement, and the detention of the Uighur scholar, Ilham Tohti. These events show that even as the government has taken the first, important step towards recognizing the value of civil society, it still has a long way to go in creating a level playing field and protections for the many, diverse individuals and organizations in China that work to create a more just and sustainable society.
April 2014: Following up on the "Two Meetings"
The news from the annual “two meetings” (lianghui) – the second session of the 12th National People’s Congress (NPC) and the Consultative People’s Political Conference (CPPCC) – held in March 2014 was more of the same in terms of the legislative agenda. In addition to the revision of the registration and management regulations for social organization and regulations on government procurement of social services discussed in the last update to this Note, the other items on the agenda have been discussed previously. Such items include:
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. [“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, for weblink click here]
2) 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.
3) Strengthening lack of trust in charitable organizations through third-party evaluations and rating systems.
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 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 for 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 having “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 (see http://www.chinadevelopmentbrief.cn/?p=3605)
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 could 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 (see http://www.chinadevelopmentbrief.cn/?p=3846)
These positive legislative initiatives accompanied a wave of optimism following the Third Plenum Decision of November of 2013 and the NPC meeting in March 2014, both of which signaled greater government support for civil society through the moniker of “social governance.” But they 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 25th anniversary of the June 4, 1989 Tiananmen protests and a substantial number were detained, investigated, harassed or arrested.
These seemingly contradictory actions during the first half of 2014 raise the important question of just what is the new administration’s position with regard to civil society? Two competing explanations have been offered.
One explanation is the “party revitalization” narrative which is that President Xi Jinping is undertaking an unprecedented effort to revive and re-energize the Communist Party by making the Party a more resilient, autonomous organization that cannot be captured by special interests. This requires cleaning out corruption in the ranks and strengthening the Party’s relationship with grassroots groups provided those groups do not seek to challenge the Party’s rule. The goal is to create a unified, competent Party that has links to, and thus is able to mobilize, social interests. In other words, this would be a Party that is not just autonomous but with deep roots in the economy and society it governs. In this narrative, the interests of civil society are subsumed to those of the Party and the best civil society can hope for is to be coopted by the Party.
The other narrative is the “liberalization” narrative which is that Xi Jinping is creating the foundation for more far-reaching liberalizing reforms but first needs to consolidate power, remove entrenched interests and ensure social stability before he can move forward on his bolder reforms to liberalize the economy and society. In this narrative, Xi Jinping cannot tolerate any challenges to his authority either from inside or outside the Party because he needs that authority to push through the reforms that are needed to revitalize China’s economy and civil society.
The “party revitalization” narrative seems more plausible: it better explains the direction of the recent policies in the civil society sector that have been discussed in previous updates in this section. The essential thrust of these policies has been to promote certain types of NGOs and NGO activities.
Toward the end of October, two interesting regulations came out of Guangzhou, the capital of Guangdong province which has been the pacesetter for creating a more hospitable environment for NGO operations. One of these regulations was a draft of “Regulations Concerning Banning Illegal NGOs” issued on October 16 for public comment. This draft regulation sparked quite a bit of public comment and controversy and led to meetings between academics, Guangzhou officials, lawyers and NGOs over revising the regulation. The other regulation was the new “Guangzhou Measures for Administering Social Organizations” that lowers barriers for the registration and operation of certain categories of NGOs. Analysis and discussion of these two measures will be forthcoming in the next quarterly update.
January - April 2015
The year 2015 could be a significant year for NGO legislation both at the national and local levels. At the local level, news of recent legislative activity emerged from Guangdong province which has been the national pacesetter for reforms in the NGO/social organization sector. Guangdong has a long-standing reputation as the trailblazer in China’s market-oriented reforms since the late 1970s, and has earned a similar reputation for taking a more liberal, open-minded attitude towards the regulation of NGOs. In Guangzhou, Guangdong’s capital, the government generally lived up to its image by issuing a new set of more NGO-friendly regulations, “Guangzhou Measures for Administering Social Organizations” that lowers barriers for the registration and operation of certain categories of NGOs. An earlier draft of this regulation had gone through a public comment period, and it now goes into effect starting January 1, 2015. One of the more controversial parts of this regulation that came up during the public comment period was a clause stating that NGOs whose funding came mostly from overseas sources or had close links with overseas organization would be banned. After a public outcry, the final version was changed to state that NGOs that accept funding and donations from abroad should report to regulators 15 days before they accept the money. The groups are also required to provide details regarding their activities, personnel, funding and location when organizing projects with the participation of foreign partners.
The reception of the “Guangzhou Measures for Administering Social Organizations” was mild compared to another regulation, “Guangzhou Working Rules on Banning Illegal Social Organizations,” that came out in draft form in mid-October of 2014 for public comment. That draft triggered a meeting at Sun Yatsen University between local government officials from the Civil Affairs Bureau, which had drafted the document, and academics, NGO representatives, lawyers, and the media. After hearing the different opinions voiced, almost all critical, the Civil Affairs officials promised to incorporate their views and suggestions in their revisions.
The Guangzhou experience suggest that local officials are caught between trying to draft more concrete regulations that steer between calls for more NGO-friendly regulations and growing concerns with influence from overseas organizations and their impact on social stability and national security.
At the national level, the concern with overseas funding and organizations and their influence on national security can be seen in the passage of a Counterespionage Law in November of 2014, the drafting of a Counterrorism Law which was put on hold in March 2015 and a new National Security Law, and the announcement in late December of a draft of a “Law on the Management of Overseas NGOs.” The term “overseas” is used instead of “foreign” because it includes NGOs registered in Hong Kong, Macau and Taiwan which are considered part of China, but outside of the mainland.
According to the Overseas NGO bill, the drafting began in April of 2014 and has been discussed and approved by the State Council. The bill was presented to the 12th session of the 12th National People’s Congress (NPC) on 22 December 2014 by the Vice Minister of Public Security but was not made public. Soon after the announcement, a draft of the bill translated into English made its way into the hands of a number of different embassies and NGOs. In April 2015, a second draft of this bill came out from the NPC Standing Committee with some revisions that adopted a more conciliatory tone. Unlike the first draft, this second draft was made public for comment.
Prior to this bill, the issue of overseas NGO registration and management had only been addressed in two national regulations. One was a 1989 regulation governing foreign chambers of commerce. The other was the 2004 Regulations on Management of Foundations, which primarily addressed domestic foundations but also contained language on the registration and management of overseas foundations. Only around 30 overseas foundations and NGOs have managed to register under that Regulation as representative offices of an overseas foundation. This is a very small fraction of the thousands of overseas NGOs operating in China. The main reason for this is because the 2004 Regulation requires that an overseas NGO find a government agency willing to be its official sponsor. Many overseas NGOs have been able to secure an official sponsor and thus have been unable to register properly. Many end up registering as a representative office of a foreign-invested company, or not registering at all and working through their Chinese partner. The current regulatory structure, in short, forces many overseas NGOs to work in a legal grey area. A new regulation or law that addresses this issue, and regulates the registration and operations of overseas NGOs has thus been sorely needed.
Several things about the Overseas NGO bill are noteworthy. First, there was little foreshadowing that a law on overseas NGOs would be coming so quickly, and the assumption is that it would be put on the backburner due to all the other NGO legislation already on the docket, so the timing of the announcement, along with recent announcements of the adoption of a Counterespionage Law in November of 2014, and drafts of a Counterterrorism Law and National Security Law, suggests that concerns about national security and foreign forces had become a top priority quite recently.
Second, it would be the first law in the history of the PRC governing the management of overseas NGOs. Previous regulatory initiatives were regulations issued by ministries under the State Council, and they either addressed only a specific category of NGOs (e.g. chambers of commerce) or were included as part of another regulation (e.g. the 2004 Regulations on Management of Foundations). This Law would supersede these earlier regulations, although there is no reference to these earlier regulations in the draft Law.
Third, unlike previous regulations which gave the Ministry of Civil Affairs jurisdiction for regulating overseas NGOs, this bill assigns jurisdiction to the Ministry of Public Security. Here again, the preoccupation with social stability and national security is clear.
Finally, this bill does not appear to address the main defect of the 2004 Foundation Regulations which prevented many overseas NGOs who had an office in China from registering. It still requires overseas NGOs to find a relevant government agency to be its official sponsor. Indeed, the bill may have the opposite effect of excluding even more overseas NGOs from operating legally in China since it also extends the same registration requirement to overseas NGOs that do not have an office but do have programs in China. According to the current bill, they too will need to find an official sponsor in order to register annually for a “temporary permit” to conduct activities in China.
Another piece of national legislation that appears to be coming along faster than expected is the long-awaited Charity Law which has been in legislative limbo since 2005. A draft of the Law has been prepared for public comment and is set to be reviewed by the NPC at the end of 2015. In late December, five teams, some of them representing nongovernmental views, were given the opportunity to submit opinions on the draft legislation. About the same time, the State Council issued its own “Guiding Opinions Concerning the Healthy Development of the Charitable Sector” that provide some clues about the priority areas that the Law will address: establishing a robust and effective supervision system for charities and standardised norms for charities’ conduct and programs, and standards for self-management, fundraising, use of funds and information disclosure.
Finally, a number of optimistic appraisals have come out about the implementation of the new Environmental Law that lowered the barrier for NGOs to file public interest lawsuits. A previous draft had only allowed a few NGOs to file public interest lawsuits, but the final draft contained more liberal language that allowed any NGO registered with Civil Affairs at the city level or above to file a public interest lawsuit. That interpretation was later affirmed by the Supreme People’s Court. Soon after the Environmental Law went into effect, two well-known grassroots environmental NGOs filed a public interest lawsuit in Nanping city, suing four individuals for harmful mining activities in the area. That lawsuit was accepted by the Nanping Intermediate Court on January 1, 2015.
There are three legal forms of CSOs in China:
- Social Organizations (SOs) (shehui zuzhi, 社会组织)
- Civil Non-enterprise Institutions (CNIs) (minban fei qiye danwei, 民办非企业)
- Foundations (jijinhui, 基金会)
In addition to these legal forms, there are also CSOs registered as for-profit businesses, and unregistered CSOs. Some unregistered CSOs gain legal status by attaching themselves to another legal entity, such as a Social Organization (shehui tuanti) or a Public Institution (shiye danwei) (including, for example, a university or research institute). Neither CSOs registered as businesses nor unregistered CSOs are considered to be CSOs in a legal sense, but they are voluntary, non-governmental, non-profit, self-governing organizations in an operational sense. They are mission-driven, nonprofit organizations founded by and governed by private individuals. Many are funded by foreign governments and embassies, international organizations and foundations, and are required to justify the non-profit nature of their activities in their reports to funders.
Together, these three legal forms of CSOs, along with the informal CSOs, are the closest equivalent to what we understand to be non-governmental, non-profit organizations. A substantial portion of the legal CSOs – in particular, Social Organizations and Foundations – were either created by the government or have close ties with a particular government agency, and are often referred to as government-organized NGOs (GONGOs). In contrast, the informal CSOs generally are more independent.
The key registration body for most organizational forms in China is the Ministry of Civil Affairs. In certain cases CSOs may also register and operate as for-profit businesses, and those do so through the State Administration for Industry and Commerce.
Public Benefit Status
Chinese law distinguishes between nonprofits that have a public benefit purpose and those that serve other purposes. The Public Welfare Donations Law confers public benefit status on two categories of organizations: "public benefit social organizations" and "public benefit nonprofit institutions." CSOs with public benefit status are eligible for tax exemption, but they are also subject to stricter government supervision [Public Benefit Donations Law, Chapters 3-5].
According to Article 10 of the Public Welfare Donations Law, "public benefit social organizations" are legally established foundations, charitable organizations, and other social organizations founded to promote public benefit undertakings. Article 3 lists which activities qualify as "public benefit undertakings" :
. Disaster relief, poverty alleviation, assistance to the handicapped, and assistance to social organizations in needy circumstances;
. Education, scientific, cultural, public health, and athletic undertakings;
. Environmental protection and construction of public facilities; and
. Other public benefit undertakings promoting social development and progress.
"Public benefit nonprofit institutions" are legally established educational institutions, scientific research institutions, health institutions, cultural institutions, public sports institutions, social welfare institutions and others that carry out public benefit undertakings and are not-for-profit.
It appears that all foundations, some social organizations, and most public institutions have public benefit status. CNIs can also obtain public benefit status and accept donations under the Public Welfare Donations Law. However, informal non-profits that are registered as businesses or unregistered are not eligible for tax exemption even though operationally, they are nonprofit and have a public benefit purpose. Some of China's best-known independent, public benefit CSOs fall into this category.
China is currently drafting a more comprehensive Charity Law that is expected to supersede the Public Benefit Donations Law, but that Law has been held up in the State Council for a number of years, and there is no indication that it will be promulgated anytime soon.
China is currently drafting a more comprehensive Charity Law that will supersede the Public Benefit Donations Law, and is expected to be reviewed by the NPC in late 2015.
Barriers to Entry
There are extensive barriers to entry based in policy, practice, and regulation. Registration procedures are complex and cumbersome, with extensive documentation and approval requirements. Organizations are required to operate under a system of “dual management” in which they must generally first obtain the sponsorship of a “professional supervising unit” such as a government ministry or provincial government agency, then seek registration and approval from the Ministry of Civil Affairs in Beijing or a local civil affairs bureau, and remain under the dual control of both agencies throughout their organizational life. In practice, it is not easy to obtain such sponsorship, particularly if a social organization lacks good connections in the government or is operating in sensitive sectors such as advocacy, legal aid, labor, religion and ethnic minority affairs.
Broad prohibition clauses bar the registration of groups that are perceived to oppose the state and/or Party. For example, the Regulations on the Registration and Management of Social Organizations (1999) prohibit registration of organizations that fail any part of this test: “Social organisations must observe the constitution, state laws, regulations and state policy; must not oppose the basic principles of the constitution, harm the unity, security or ethnic harmony of the state, or interests of the state and society, or the lawful interests of other organisations or citizens, or offend social morality.” Other broad provisions give the state wide discretion over which organizations are allowed to register.
The “dual management” requirements and broad prohibition clauses apply to all types of organizations, including social organizations, foundations, and other groups. But the barriers to entry do not end there. For example, the Regulations on the Registration and Management of Social Organizations (1999), the governing document for the largest subsector of Chinese nonprofits, also stipulate that applicant organizations must comply with a wide range of other requirements and undergo a lengthy application and approval process. Such applicants must have at least fifty individual members or thirty institutional members; a fixed location; staff with qualifications appropriate to the professional activities of the organisation; minimum assets of 100,000 RMB (currently US$9,500) for national organizations and 30,000 RMB ($2,800) for local organizations; and must supply the registration and management agency with a wide array of organizational documents. Government agencies may rely on a wide array of reasons to deny registration. Furthermore, the Regulations on the Registration and Management of Social Organizations (1999) and the Interim Regulations on the Registration and Administration of Civil Non-Enterprise Institutions (1998) both stipulate that SOs and CNIs cannot establish branch organizations or offices in other regions. SOs and CNIs get around this provision by registering their branch office as a separate organization.
After registration, organizations may seek approval in a separate process for an official seal and to open a bank account. Separate permissions must be sought from the relevant government management agencies to establish a branch or subsidiary of the group; to modify their registration or to amend their charter; to change their legal representative, and for other purposes. The government is provided with broad discretionary authority to close social organizations.
In the face of the “dual management” system, the difficulties in negotiating registration and approval, onerous reporting requirements and the opportunity for frequent government intrusion into organizational matters, many Chinese social organizations of various kinds either register as a for-profit business, or operate without formal registration. According to the Interim Measures for Banning Illegal Non-Governmental Organizations, these informal nonprofits are formally illegal, making them even more subject to state discretion and control.
Over the last few years, local governments have been experimenting with ways to lower barriers to entry by reforming the dual management system for certain categories of social organizations. In most cases, this reform involves doing away with the requirement for social organizations to obtain the sponsorship of a professional supervising unit. In 2013, high-level officials have signaled that the central government will also be issuing similar reforms at the end of the year. These reforms are discussed in more detail in the section above on Pending NGO Legislative/Regulatory Initiatives.
 Regulations on the Registration and Management of Social Organizations (1999), Art. 4
Barriers to Operational Activity
Barriers to operational activities can be raised or lowered by the authorities at their discretion, depending in large part on how their activities are viewed by the party-state. Generally, nonprofits engaged in social services and philanthropy tend to be viewed more favorably than nonprofits engaged in advocacy and legal aid. For some forms of organizations, such as social organizations or civil non-enterprise organizations, the government has authority under relevant regulations to bar the establishment of more than one such organization in its field in any particular locality as a way to prevent what is viewed as duplication, overlap, and competition and to maintain ties between such groups and their governmental sponsors. 
The government may also intervene in the appointment of directors, trustees or senior staff; narrow the boundaries of the work that organizations may engage in by reference to the government-approved original organizational application or charter; govern the banking arrangements of various kinds of charitable groups in detailed ways; undertake investigations of operational activities and terminate organizational activities through application of tax laws; and undertake other restrictions on operational activities. Even for registered organizations that have no issues with the state, reporting requirements can be quite burdensome, particularly for small organizations. The regulatory framework allows for significant government intervention and interference. Strong security forces, such as the Ministry of Public Security and other groups, intensively monitor organizations of particular sensitivity for the Party and state.
Over the years, a number of methods have been used to restrict and control the operational activities of certain nonprofit groups with some being harassed and others being closed down temporarily. For example, 2007, the civil society publication, Minjian was closed down, and another, China Development Brief, stopped publishing for a few months. In 2010, the Open Constitution Initiative (Gongmeng), a Beijing-based public interest law research and advocacy group, was placed under tax investigation arising from a donation from an American organization, several of its core personnel detained, and eventually closed as a result of the alleged violations of tax regulations. A reading through the Pending Legislative/Regulatory Initiatives above will yield other examples.
 See, e.g., the Regulations on the Registration and Management of Social Organizations (1999), Art. 13(2).
Barriers to Speech / Advocacy
A gap between constitutional freedoms for speech and assembly and the more restrictive provisions of special regulations and legal frameworks provides the state with significant discretion to limit speech, assembly and advocacy for specific organizations and types of organizations. The government can also prohibit advocacy, and actions such as lawsuits, in cases that it deems harmful to national security.
Such barriers are implemented through administrative decrees (such as the regulations governing social organizations and other kinds of groups), as well as criminal and administrative regulation and barriers to participation in policy debate and formulation that may favor government-affiliated groups or may restrict policy advocacy by defining it as outside the organization’s ambit of approval or its charter. Direct barriers to organizational activity, such as those discussed above, may also restrict speech, assembly and advocacy.
As an example of such barriers, in 2013, a number of activists were arrested for “unlawful assembly” in calling on government officials to publicly disclose their personal assets. Among them were Xu Zhiyong, one of the founders of the NGO, Gongmeng (Open Constitution Initiative) which advocates for constitutionalism and rule-of-law reforms. Later that year, there were broader restrictions placed on social media, with the detention and arrest of some high-profile bloggers, including billionaire entrepreneur, Wang Gongquan, who was a supporter of Xu’s.
The recent sentencing of Xu to four years in prison for "gathering a crowd to disrupt order in a public place" was a reminder of the high barriers to speech and assembly in China. Days before Xu's sentence was announced, 78 scholars, journalists and lawyers issued an Open Recommendation to Conduct Constitutional Review on the "Law of the People's Republic of China on Assemblies, Processions and Demonstrations".
Barriers to International Contact
There appear to be relatively few barriers to international contact in the regulatory framework for particular kinds of organizations, such as the regulations governing social organizations (shehui tuanti), foundations (jijinhui), civil non-enterprise institutions (minban fei qiye danwei), and quasi-governmental public institutions (shiye danwei).
However, particularly at the provincial and sub-provincial levels, organizations of all kinds are often required to report international contacts to authorities and, in some cases, to seek approval for certain kinds of visits, international cooperation, foreign donations, and other contact with foreign organizations or donors. They are also discouraged from working with or receiving funding from overseas organizations which are engaged in “democracy promotion”.
The participation of international NGOs in public affairs in China is a sensitive matter that is monitored by security agencies. The State Security Ministry established an office several years ago to monitor both domestic and international NGO affairs. Multiple written or unwritten rules can affect international contacts, and they may emerge relatively suddenly.
International NGOs have long had a difficult time registering in China, and the large majority of international NGOs are registered as a business entity, or unregistered and work quietly through Chinese partners. In 2013, high-level officials began sending signals that they are considering issuing new regulations that will make it easier for international NGOs to gain legal status. In May of 2014, the newly-formed National Security Commission headed by 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.
Barriers to Resources
In general terms Chinese organizations seeking external resources (such as foundation grants, direct gifts, and other resources) must obtain approval from their appropriate regulatory agency (such as a bureau of civil affairs at the provincial level) for such transactions. Organizations may also need approval to establish bank accounts in some cases. The laws and regulations governing the key forms of nonprofit and social organizations do not address issues of foreign funding in detail but other law and regulation makes such resource mobilization generally subject to state approval.
In early 2010, for example, the PRC State Administration of Foreign Exchange issued a formal notice, Notice 63 on Issues Concerning the Administration of Foreign Exchange Donated to or by Domestic Institutions that requires many domestic nonprofit organizations to comply with new and more complex rules for receiving and using foreign donations. These include, for certain kinds of organizations, an application attesting to the authority of the domestic organization and the foreign donor; the domestic group’s business license; a notarized donation agreement between the domestic group and the foreign donor organization with the purpose of the donation prescribed; and a registration certificate for the foreign nonprofit group. The Notice spurred significant concern in both domestic NGO and foreign nonprofit circles and its implications are still being worked out. Many nonprofits have been able to continue accessing foreign funds, but some organizations have experienced difficulties especially in cases where funding is coming from foreign organizations, such as the National Endowment for Democracy, the Open Society Institute, and the International Republican Institute, that are perceived as sensitive because of their “democracy promotion” work. 
There is as yet no detailed domestic fundraising regulation, but generally speaking public fundraising, which is understood to mean fundraising through the media, in public spaces and online, is restricted to a small number of organizations. These include government agencies, such as the Ministry of Civil Affairs, officially designated organizations such as the Chinese Red Cross and China Charity Federation, and one type of foundation. The 2004 Regulations on the Management of Foundations creates two categories of foundations: public fundraising foundations and non-public fundraising foundations (hereafter referred to as “public” and “private” foundations respectively). Only public foundations have the authority to engage in public fundraising. Private foundations are funded by a major gift from a company or family, and can accept donations through private channels, but cannot engage in public fundraising. Other nonprofits, such as SOs or CNIs, are also not allowed to engage in public fundraising.
Provisions in the draft Charity Law (not yet enacted as of February 2012) would provide some general regulation of domestic fundraising. There is some concern in China about several important fundraising issues, including the regulatory and tax treatment of gifts of domestic stock for nonprofit and philanthropic purposes, and the business activities of nonprofits or their for-profit subsidiaries. A series of scandals in 2011 in some prominent public fundraising foundations, such as the Chinese Red Cross and the Soong Ching Ling Foundation, have made public problems with the lack of transparency and accountability in the philanthropic sector, and the need for improved regulations governing this sector. These issues have not, for the most part, been fully worked out in the Chinese regulatory framework.
 English text of Notice 63, Chinese text of Notice 63.
Barriers to Assembly
Both the Assembly Law and the Implementing Measures contain vague and restrictive provisions, and give enforcement authorities a great deal of authority and discretion. For example, Article 12 of the Law prohibits assemblies that might “oppose cardinal principles in the Constitution,” although those principles are never specified. The Law also makes it difficult to hold assemblies related to territorial and ethnic minority issues. There is also a broad clause prohibiting assemblies that will harm “public security and public order,” without any qualifying provisions.
Maximum Numbers of Participants
There is no maximum number of participants in the Assembly Law, but various local regulations may define a specific limit. In Beijing, NGOs cited 50 and 200 as ceilings that they have heard of by word of mouth, but they could not cite specific regulations containing those limits. A 2002 Human Rights Watch report titled “Dangerous Meditation: China’s Campaign Against Falun Gong” states that “On November 24, 1999, the Ministry of Public Security issued new public assembly regulations prohibiting gatherings of 200 or more for mass cultural and sporting activities, such as concerts, sports meets, and public exercise sessions such as qigong practice without explicit police approval, citing an article, "China to regulate mass gatherings," from BBC Worldwide Monitoring (November 24, 1999). It is important to note, however, that Article 2 of the Assembly Law states that the Law “does not apply to recreational or sports activities, normal religious activities or traditional folk events.” This suggests that there may be additional regulations issued at the local level by Public Security offices concerning other types of assembly.
Article 8 of the Assembly Law states that “the responsible person(s) must submit an application in writing to the competent authorities five days prior to the date of the activity.” The regulatory authority is required to give a response two days prior to the activity. According to Article 9:
… after receiving an application for an assembly, a procession or a demonstration, the competent authorities shall inform the responsible person(s) in writing of their decision to grant or not to grant permission two days prior to the date of the activity applied for. If no permission is granted, the reasons thereof shall be given. Failure to serve notice within the time limit shall be construed as the granting of permission.
The Assembly Law does, however, provide for last-minute applications in the event of an unexpected occurrence. Article 9 states:
If an assembly, a procession or a demonstration is truly necessitated by unexpected occurrences, a report must be made immediately to the competent authorities: upon receiving the report, the competent authorities shall immediately examine it and decide to grant or not to grant permission.
The law does not address counter-demonstrations. However, spontaneous assemblies are not permitted. Article 29 of the Assembly Law states:
In a case where no application has been made for an assembly, a procession or a demonstration in accordance with the provisions of this Law or no permission has been granted for the application or where it is conducted not in accordance with the starting and finishing time, places and routes permitted by the competent authorities, when the disbanding order is disobeyed and public order seriously undermined, the person(s) responsible for, the assembly, procession or demonstration and the person(s) who is directly responsible shall be investigated for criminal responsibility in accordance with the provisions of Article 158 of the Criminal Law.
Obligations of Organizers
The Assembly Law places a number of onerous obligations and liabilities on the organizers of assemblies. For example, Article 25 of the Assembly Law states:
The person(s) responsible for an assembly, a procession or a demonstration must assume responsibility for maintaining the order thereof and strictly guard against participation by others. The person(s) responsible for an assembly, a procession or a demonstration shall, when necessary, appoint special personnel to assist the people's police in maintaining order. The personnel responsible for the maintenance of order shall wear identification marks.
In addition, Article 28 of the Assembly Law states that “the police may punish by warning or by criminal detention of not more than 15 days the organizers if the assembly involves one of the following circumstances:
(1) failure to make an application in accordance with the provisions of this Law or to obtain permission for the application; or
(2) failure to act in accordance with the purposes, manners, posters, slogans, starting and finishing time, places, and routes permitted by the competent authorities, and disregard of instructions to stop acting without permission.”
The government has used excessive force in breaking up assemblies. The most notorious example is the protests that occurred in the spring of 1989 in various cities in China, culminating in the June 4 crackdown on protestors in Tiananmen Square Beijing. To this date, it is unknown how many civilians were killed in that crackdown.
There was also a brutal reprisal against Falun Gong demonstrators in the fall of 1999 after they staged a silent vigil outside of Zhongnanhai, where the top Chinese leaders live and work. Human rights groups and other journalistic and academic studies report that Falun Gong practitioners in China are subject to a wide range of human rights abuses. Tens and perhaps hundreds of thousands are believed to have been imprisoned extrajudicially, and those detained are subject to forced labor, psychiatric abuse, torture, and other coercive methods of thought reform at the hands of Chinese authorities.
More recently, the state has used force to break up demonstrations over land seizures and corruption in rural areas.
Restrictions on Participants
A number of articles in the Assembly Law address various criminal and other sanctions that participants can face. As but one example, Article 30 states:
Those who disturb, break into or undermine by other means an assembly, a procession or a demonstration held in compliance with law may be punished by the public security organ by warning or by criminal detention of not more than 15 days; if the circumstances are serious and a crime is constituted, they shall be investigated for criminal responsibility in accordance with the relevant provisions of the Criminal Law.
In addition, Article 15 of the Assembly Law states that “No citizens shall, in a city other than his place of residence, start, organize or participate in an assembly, a procession or a demonstration of local citizens.” This means that a person residing in one city cannot start, organize or participate in an assembly in another city.
Article 34 of the Assembly Law also states that foreigners need approval by “the competent authorities” to participate in an assembly held by Chinese citizens.
Time, Place, and Manner Restrictions
Articles 23 and 24 of the Assembly Law place restrictions on holding assemblies at certain places or times.
Article 23 states as follows:
No assembly, procession or demonstration shall be held within a peripheral distance of 10 to 300 meters from the following places, with the exception of those approved by the State Council or the people's governments of provinces, autonomous regions and municipalities directly under the Central Government:
(1) premises of the Standing Committee of the National People's Congress, the State Council, the Central Military Commission, the Supreme People's Court and the Supreme People's Procuratorate;
(2) places where state guests are staying;
(3) important military installations; and
(4) air harbors, railway stations and ports.
The specific peripheral distances from the places listed in the preceding paragraph shall be defined by the people's governments of provinces, autonomous regions and municipalities directly under the Central Government.
In addition, Article 24 states that “The time for holding an assembly, a procession or a demonstration shall be limited to 6 a.m to 10 p.m., with the exception of those held by decision or approval of the local people's governments.”
Although there are no content-based restrictions, Article 12 prohibits assemblies that will harm “the unity, sovereignty and territorial integrity of the state” and instigate “division among the nationalities.” This discourages assemblies related to ethnic minority issues, particularly those connected to regions such as Tibet and Xinjiang where there has been vocal dissatisfaction with Communist Party governance.
Many CSO representatives perceive the Assembly Law as largely irrelevant. They noted that they would not apply to hold an assembly in the first place because they know they would be turned down. In addition, the police would then have a record of who they were, which could cause trouble for them later.
At the same time, assemblies and demonstrations do occur in China, but generally not because the organizers have applied and been approved to hold the assembly. In October 2012, large anti-Japanese demonstrations were held in Beijing and a few other cities. While it was never clear who organized the demonstrations or whether the organizers had applied, it was suggested by a number of people that the demonstrations had been in part organized and had the support of the government. Also in October 2012, a Beijing gay rights NGO conducted an AIDS walk along a section of the Great Wall that involved hundreds of participants. The organizer did not apply to hold the walk. Instead, the organizer held the walk with the cooperation of a government-run AIDS foundation. These examples suggest that assemblies organized by government or quasi-government organizations have more leeway and are not bound by the Assembly Law.
|UN Universal Periodic Review Reports||Universal Periodic Review: China|
|Reports of UN Special Rapporteurs||China|
|USIG (United States International Grantmaking) Country Notes||USIG: China|
|U.S. State Department||2011 Country Reports on Human Rights Practices: China
Advancing Freedom and Democracy Reports, 2009: China
|Fragile States Index Report|
|IMF Country Reports||China and the IMF|
|International Commission of Jurists||Not available|
|International Center for Not-for-Profit Law Online Library||China|
News of importance to the nonprofit sector will be updated on a continual basis in China Development Brief’s column, A View from the Top. See also, China Development Brief Directory of 250 Chinese NGOs and accompanying report.
While we aim to maintain information that is as current as possible, we realize that situations can rapidly change. If you are aware of any additional information or inaccuracies on this page, please keep us informed; write to ICNL at firstname.lastname@example.org.
On September 18, the 4th China Charity Fair was held in Shenzhen. There were also several other charity or philanthropy fairs and forums held during this period. See China Development Brief for up-to-date news about these events.
On November 5, Tsinghua University, in partnership with the Ministry of Civil Affairs, recently opened its Institute for Philanthropy.
On November 12, the China Global Philanthropy Institute was established jointly by high-profile American and Chinese philanthropists such as Bill Gates and Jack Ma.
Charges Against Chinese Rights Lawyers Draw Foreign Criticism (January 2016)
The recent arrests of Chinese lawyers and their associates on subversion charges drew sharp condemnation from presidents of foreign bar associations, prominent lawyers and former judges in a letter issued on Monday. They said the charges were part of an “unprecedented crackdown” on Chinese advocates who take up contentious human rights cases.
China’s Latest Crackdown on Workers Is Unprecedented (December 2015)
In an unprecedented crackdown on some of China’s most effective independent labor organizations, known as worker centers, seven worker-activists have been detained and held virtually incommunicado in detention facilities in Foshan and Guangzhou.
Grassroots NGOs Win Landmark Environmental Public Interest Lawsuit (November 2015)
Two grassroots environmental NGOs won a landmark public interest environmental lawsuit when a court in Fujian province ruled in their favor on October 29, 2015. It was the first time grassroots NGOs were allowed to file a public interest environmental lawsuit under the newly revised Environmental Protection Law.
China's Xi Defends Censorship Amid Support For Embattled Rights Community (September 2015)
Activists stepped up calls for Chinese President Xi Jinping to end an ongoing crackdown on rights activists back home as he defended his government's tight controls on the Internet on Thursday. Xi, who traveled from Washington state to Washington, D.C. on Thursday ahead of talks with Obama and a state dinner at the White House on Friday, has been greeted by protesters at every stop of his state visit to the United States this week. According to U.S.-based veteran dissident Yang Jianli, a raft of new laws aimed at bolstering "national security" is putting increasing pressure on activists and non-government groups.
White House sends tough message on NGOs as Chinese President visits (September 2015)
A top White House official Tuesday hosted US non-governmental groups who face tough new Chinese security laws, a high-profile statement of concern as Xi Jinping arrived in the United States. White House National Security Advisor Susan Rice met several representatives from among the universities, businesses and rights groups that would be forced to register and report to the Chinese security services if the draft law enters into force.
Draft anti-terrorism law should be revised (January 2015)
Chinese authorities should withdraw or substantially revise a proposed counter-terrorism law which could be used to further monitor, censor and criminalize the work of human rights defenders and pro-democracy activists, the International Service for Human Rights (ISHR) and Chinese Human Rights Defenders said in a joint statement. 'China's draft Anti-Terrorism Act contains a range of vague and overbroad provisions the interpretation and application of which could be used to further restrict and criminalize the work of human rights defenders,' said ISHR Director Phil Lynch. Article 104 of the draft law defines 'terrorism' in broad terms to include 'thought, speech or behavior' that is 'subversive' or even that which seeks to 'influence national policy making'.
Guangzhou OKs foreign cash for NGOs (November 2014)
Authorities in Guangzhou have issued a new regulation for the city's fast growing non-governmental sector, deleting a draft clause stipulating that NGOs that receive overseas funds or are "under de facto management" by overseas organizations should be shut down. Analysts and NGO professionals said that it is a positive signal from the government that will encourage the development of NGOs. According to the regulation, which will take effect in 2015, NGOs will only need to submit a report to management authorities 15 days before obtaining overseas funds. The report should include information on the form, scale, participants, time, location, and budget of their activities.
China Approves Security Law Emphasizing Counterespionage (November 2014)
President Xi Jinping of China has signed a new Counterespionage Law, replacing the 1993 National Security Law with an updated set of rules that will more closely target foreign spies and Chinese individuals and organizations who collaborate with them. The new law, which was signed by Mr. Xi on Saturday, "comprehensively revises the National Security Law to emphasize anti-espionage work," Xinhua, the state-run news agency said. But it added that human rights would be protected under the law. "Counterespionage work must be carried out in accordance with the law and respect and protect human rights, as well as protect the legal rights of civil society organizations," it said.
New Signs that China is Scrutinizing Foreign NGOs (June 2014)
An image being passed around the social media site Weibo shows several men straining to hoist a flag atop rubble, a reference to the iconic World War II image of American troops hoisting the United States flag at Iwo Jima. But on the flag are red letters spelling "NGO," not the stars and stripes of the 1945 photograph. The message is clear: Americans use NGOs to conquer. Many Chinese officials believe Western governments use nongovernmental organizations to encourage democratic "color revolutions." That attitude may have spawned a new investigation, one that apparently began not long after China's new National Security Commission, headed by President Xi Jinping, met for the first time on April 15 to launch a "penetrating" security review of foreign nongovernmental organizations in China, according to a notice that briefly appeared on a local government website in Shanxi Province.
Pray for Gao Zhisheng on Easter (April 2014)
The changing face of service society (May 2013)
'Spring' in the air for NGOs? (April 2013)
Government's NGO funding peaks in 2012 (February 2013)
NGOs praised for role in fighting HIV/AIDS (November 2012)
State to tighten oversight of international NGOs (September 2012)
Activist and artist Ai Weiwei loses appeal on tax evasion charges (September 2012)
China's door "wide open" to foreign NGOs (September 2012)
NGOs get boost from Shenzhen register reforms (August 2012)
Changing climate for religious NGOs? (July 2012)
Charity Law submitted to State Council (June 2012)
China keen to scale down EU human rights talks (June 2012)
Law to give new start to embattled charities (June 2012)
Will pressure make Chinese aid more transparent? (March 2012)
Charities open to religious groups (March 2012)
China develops law on philanthropy (October 2011)
Social groups may get right for litigation (October 2011)
China human rights group blocked from EU-China dialogue (September 2011)
China jails veteran democracy activist (September 2011)
New breakthrough for grassroots charity groups (August 2011)
Chinese civilian NGOs seek charity legislation (August 2011)
Carefully cultivating NGOs (July 2011)
China to ease NGO registration policy (July 2011)
China seeks to expand modern philanthropy (May 2011)
Biden, Clinton lecture China on human rights (May 2011)
End the silence on Ai Weiwei (April 2011)
China's human rights crackdown - interactive guide (April 2011)
EU and US urge China to free Ai Weiwei (April 2011)
Crack down on Egypt-inspired protests in China (February 2011)
Experts assess the progress of civil society in China (February 2011)
Civil Society News from China-Wire
Nonprofits in China, Harvard University’s Hauser Center for Nonprofit Organizations
NGOs in China
China Philanthropy Blog
China Foundation Center
The foregoing information was prepared by Shawn Shieh, Deputy Director of Development and Operations, China Labour Bulletin (HK). Dr. Shieh may be reached via e-mail at: email@example.com.