Still a small window open to reverse China’s new NGO law

In this anonymous interview with CIVICUS, a human rights defender working for a civil society organisation in China details what China’s new NGO Law means and its likely impact on NGOs. Although the law was passed in April and should take effect in January 2017, it can be repealed if the President is convinced not to sign the order to enact it.

Q: Please detail briefly what China’s new NGO law says for local and foreign NGOs

First of all, it has to be clarified that calling the law the “foreign NGOs” as has been peddled in most media is a misleading translation. In its original Chinese language, the law is literally about “extra-territorial” not “foreign” NGOs, meaning that it covers NGOs in Hong Kong, Macau and Taiwan, as China sees it.

The new law works predominantly to keep both local and foreign NGOs under stringent surveillance and excessive power of the authorities, and that of the police, to be specific.

It also interferes into any normal process of communication and collaboration between local groups and their international counterparts by creating excessive use of administrative measures of reporting and registration procedures. 

Underlying the law is a rather paranoiac mentality that puts the civil society, be it local or international, in the realm of national security control, seeing its activities as potentially subversive.

Q: What could be some of the effects of this new law on domestic and international NGOs?

The new law will negatively impact the normal development of civil society. It implies shrinking space for the respective activities and operations of both domestic and international NGOs.  Unless an international NGO agrees to register under the requirement of the new law, which then will subject it to be closely monitored; it will be very difficult for it to launch any project or activity in China. Even if an international NGO does not physically enter China to avoid the need for registration, the new law will put its local partners in China in a very risky position as it is possible with this law to criminalise an individual or organisation collaborating, within the mainland territory, with any unregistered extra-territorial NGOs.

The damage on domestic NGOs, especially for the grassroots rights-based groups, will include reduced chances for exchanges and exposure, and interaction with their international counterparts. There will also be reduced resources, in terms of finance, materials and skills, from outside as a consequence of this law. More importantly, given the current lack of effective mechanism for checks and accountability for the policing institution, the new law is putting NGOs and civil society in general under the direct and unchecked control and intimidation of the power of the police.

Q: How can local NGOs adapt and function effectively in light of this new law?

Apart from those NGOs endorsed by the government and who have agreed to function under its monitoring; the grassroots rights-based groups wishing to maintain some degree of autonomy will have to keep very careful and calculated balance between fulfilling their mission and at the same time not trespassing the limit of the authorities.

Apart from having to adapt to the more severe political environment, grassroots rights-based groups also suffers general lack of resources and skills.

Q: China argues that the law is necessary to guard local populations against unscrupulous NGOs. What is your view on that?

While the need to maintain public order and national security can both be legitimate grounds to justify some extent of regulation on civil society activities, the real intention of the new NGO law in China remains dubious. There are at least two concerns along these lines.  

Firstly, in China, there is no clear and legal definition on public order and national security. Numerous cases in which activists and rights defenders are criminalised have demonstrated that the two terms are more than often subjected to arbitrary interpretation and implementation, mostly by the police, for suppressive purposes.

Secondly, even with the passage of the law – which then provides some legality to the monitoring, there is still the question of necessity and proportionality to be answered.  In fact, the criminal code can be used to handle malpractice, unscrupulous and unlawful acts or behaviours of civil society groups. What make the new NGO laws draconian are the low thresholds on which persecution will be possible and the disproportionate power enjoyed by the police. While the law says the police would be subjected to disciplinary measures should there be power abused or malpractice, it remains unclear in the law what and how such measures are to be applied.

Q: In light of the law, how can other international NGOs assist NGOs in China?

Though many see the revised title of the law, which is “Law on the Management of Foreign NGO Activities inside Mainland China”, implying possibility or leniency for activities to be held outside mainland China, we take note also the recent trend of the Chinese government of prohibiting activists and rights defenders from travelling out of the mainland boundary.

We would like to highlight that according to the People’s Republic of China Law on Legislation (2015), the legislation procedure should include the following steps;

  • Table bill in National People’s Congresss (NPC),
  • NPC or National People’s Congresss Standing Committee (NPC SC) (three readings of the bill), 
  • Passage by NPC or NPC SC AND;
  • Enactment via means of an order of the President.  

The new NGO law has by far gone through the first three steps or readings necessary under law.  It is not yet enacted and we hence think it is imperative for the international community to call for the repeal of the law by petitioning the Chinese President not to sign the order to enact it and enable the NPC to repeal it.

Article 44 of China’s Law on Legislation (2015) stipulates that a national law passed by the NPC shall be promulgated by way of a presidential order signed by the state president.

Article 97 of the Law on Legislation (2015) also stipulates that NPC has the right to amend or repeal a bill passed by NPC Standing Committee (NPCSCC) should it be deemed improper.

 

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