In the same month as finally signing on to the International Covenant on Civil and Political Rights, which enshrines the right to freedom of association,1 the Chinese government has passed laws which aim to enforce even more strictly than before its long-held position that Chinese citizens may not exercise this fundamental right without first gaining express permission from the state. In effect, the new laws nullify freedom of association, a right which is also enshrined in China's 1982 Constitution.2 We are concerned that some international agencies have actually supported the Chinese government department responsible for drafting these repressive laws in the name of assisting the development of "civil society."
On October 25, 1998, China's State Council promulgated a long-awaited new Regulations on the Registration and Management of Social Groups (shehui tuanti dengji guanli tiaoli).3 These Regulations replaced a set of the same name passed ten years ago, in October 1989, in the wake of the crackdown on the Democracy Movement, a moment of conservative reaction against demands for political reform and separation between the Party and the government, the state and the society. On the same day as it passed these new Regulations, the State Council also promulgated another law, Provisional Regulations on the Registration and Management of People-Organized Non-Enterprise Units (minban feiqiye danwei dengji guanli zanxing tiaoli).4 A third law, Provisional Regulations on the Registration and Management of Institutional Units 5 (shiye danwei dengji guanli zanxing tiaoli), has also been announced, but has not yet been promulgated.6
During the past nine years, certain commentators have claimed that China is witnessing the emergence of a nascent "civil society," in which organizations are growing more independent of the state. Even the Chinese government now points proudly to home-grown "NGOs," which are increasingly attracting funding and support from international agencies, both intergovernmental and non-governmental. Furthermore, some reports have said that a "Beijing Spring" of more open discussion this year heralded a more liberal attitude on the part of government, while others asserted that the 15th Congress of the Chinese Communist Party (CCP) adopted a platform of "small government, big society" which presaged a more tolerant approach to association.
Certainly, in the last 20 years the personal freedom available to most Chinese people has gradually expanded as a result of the retreat of the state, although arbitrary infringement of such freedom can occur at any time. Also, the unremitting efforts of people inside and outside the system to enlarge their political and social space and the fracturing of bureaucratic interests as a result of economic change has created some degree of "pluralism by default" in which certain non-profit initiatives have been able to begin to play some of the roles of NGOs in freer societies.
But these new laws throw icy water over expectations about a more liberal climate for association, since they are clearly aimed at binding all non-profit ventures more tightly to the Party-state. They represent an effort to bring the entire sector under stricter control, expanding the existing "registration and management" scheme previously applicable only to "social groups" to all non-profit initiatives undertaken by Chinese citizens.7 Previously, some such initiatives had managed to avoid the requirements of the 1989 Regulations on Social Groups by, for example, registering as companies.
A detailed assessment of the principal elements of these rules is presented below. The following are the main changes compared with the 1989 version, the 1998 Regulations on the Registration and Management of Social Groups (indicated as in this list as "SG") and the principal elements of the new Provisional Regulations on the Registration and Management of People-Organized Non-Enterprise Units (indicated as "NEU"):
Article 1 of the Social Group Regulations (SGR) state that they are enacted to "guarantee citizens their freedom of association and protect the legitimate rights and interests of social groups, strengthen the registration and management of social groups and promote the construction of socialist material and spiritual civilization." Article 1 of the Non-Enterprise Unit Regulations (NEUR) state that they are enacted to "regularize registration and management" of such units and to "guarantee the legitimate rights and interests of people-organized non-enterprise units." These are the only mention of any rights in either of the documents. The rest is almost entirely about constructing a comprehensive two-tiered mechanism of control for social groups and non-enterprise units, restricting their overall number and scope of activity and forestalling any possibility that they may emerge as an independent force.
SGR Article 2 defines social groups as "non-profit social organizations carrying out activities within the scope of their charters which are voluntarily established by Chinese citizens to achieve the common aims of their members." Thus social groups are now limited to membership organizations, which was not the case in the 1989 rules.
NEU Article 2 defines of what type of entities are to be included in the category of people-organized non-enterprise units: "social organizations (shehui zuzhi) set up for the purposes of conducting non-profit social service activities by enterprises, institutional units, social groups and other social forces, as well as individual citizens, using non-state assets." The effect of the Non-Enterprise Unit Regulations is to extend the current system of control to all unofficial non-profit activities. The Provisional Regulations on the Registration and Management of Institutional Units are expected to set up a similar scheme for hospitals, schools, cultural institutions and other public bodies.
Overall, the registration scheme of the new SGR mirrors the 1989 version, and the NEUR establishes a virtually identical model. All groups and units are required to register with the Ministry of Civil Affairs or its departments above county level before they can begin operating. These departments' "management" of social groups and units means they are supposed to "supervise" them and conduct an annual audit of each one. But before a group or unit can even submit an application, it must have received prior "approval" from the relevant "professional leading departments" (SGR Article 3, NEUR Article 3), which must be government departments or institutions to which government has explicitly delegated such authority (SGR Article 6 and NEUR Article 5). This "sponsoring unit" (guakao danwei), as it is commonly known, is in charge of making sure that the subsidiary organization obeys the rules, and is responsible for the group's actions. SGR Article 28 and NEUR Article 20 spell out the extensive responsibilities of sponsors to "supervise" and "guide" the affairs of the social group or unit, and various other articles state that the sponsor's prior approval is required for any change in the circumstances of the group or unit.8 Since the 1989 regulations did not specify the elements of the supervisory role of sponsors, in practice some social groups were able to operate with little interference.
As well as meeting the previous requirements for a registration application-providing the address, officers' names and details, purpose, charter and so on-according to SGR Article 10, a proposed group must have at least 50 individual members, or 30 institutional members; have a fixed location for its operations; and have personnel who have "expertise appropriate to its activities." In addition, a national organization must have 100,000 yuan or more of "legitimate assets or funding sources," while a local organization must have upwards of 30,000 yuan.9 While the requirements of NEUR Article 8 are less stringent, they still set a high standard, requiring that the unit have an office, the unspecified "necessary" organizational structure, personnel with "expertise appropriate to its activity" and "legitimate assets suitable for its activities." Determining whether the assets of groups or units are "legitimate" clearly gives the government wide powers to examine the funding sources of social groups, as SGR Article 29 further elaborates. The concept of "legitimate" is overly vague, and gives rise to concern that it may be used to justify arbitrary interference in the financial affairs of social groups. For example, under the State Security Law, receiving funds from individuals and groups inside and outside the country which are viewed by the authorities as "harmful to state security" or "hostile" may be considered an offense.10
The new Social Group Regulations increase the hurdles for social groups to register by adding an additional stage to the registration process. First, a prospective group must find a sponsor, which will prepare unspecified "documents" testifying to its support. As before, no details are given as to what this preliminary stage requires on the part of the social group or the sponsor. With these documents in hand, the social group can then apply to the civil affairs departments for the newly-created status of "preparatory establishment," and wait up to 60 days for an answer (Article 12). If the civil affairs department refuses to grant permission, it must "explain the reasons" to the group's initiator. If the group is approved, then it may begin preparatory activities only, and must hold its first membership congress within six months, at which its charter is to be passed (Article 14). After this, the group must submit all relevant documents to the civil affairs departments and wait up to 30 days for a decision on whether the social group may be "established." If registration is denied, the authorities are required to "notify the applicant of the decision" (Article 16).
The Non-Enterprise Unit Regulations have a two stage approval process. First, approval from the sponsor, for which no specifics are given, and second, registration. The civil affairs departments have up to 60 days to approve or disapprove the application (Article 11). If registration is refused, an "explanation" must be given to the applicant(s).
There is no indication of whether the above "explanations" or "notifications" are to be provided in writing. More importantly, neither of the two laws envisage any procedure for appeals against any of the decisions civil affairs departments, sponsors or other government bodies may make regarding a social group or unit, in contrast to the previous Social Group Regulations which had various articles specifying time periods and procedures for administrative appeals. A new law passed by the State Council, Regulations on Administrative Review, lists administrative acts for which review is available, and decisions of the civil affairs departments on social groups or non-enterprise units are not among them. Furthermore, there is no opportunity for judicial review, since legal challenges are only permitted under China's Administrative Litigation Law if a law or regulation explicitly allows for them, and the Social Group Regulations do not.
Both the old and the new SGR contain a rule which does not allow for organizations covering the same ground to exist, and a similar rule is included in the NEUR. According to SGR Article 13 and NEUR Article 11, a social group or unit cannot be established "when a social group/unit covering an identical or similar professional scope already exists within the same administrative area, and it thus is not needed." This rule gives official bodies like the All-China Women's Federation an effective monopoly over certain kinds of activities. Citizens, rather than government, should be able to decide whether an existing organization represents them adequately or not, without government deciding what is "needed."
Article 4 of both laws enumerates an identical extensive list of prohibitions constraining the activities of social groups and units. It reads: "Social groups/units must abide by the Constitution, the laws and regulations and state policies; may not violate the basic principles established in the Constitution; may not harm national unity, state security and the solidarity of the nationalities; may not harm the interests of the state, society, other groups or individuals; and may not go against society's morality and customs." This is not only much stronger language that the wording in the 1989 Regulations,11 it also adds the key elements of "endangering state security," adhering to "state policy" and the requirement that all social groups adhere to the "basic principles." This latter term principally includes the Four Basic Principles in the Preamble to the 1982 Constitution, namely keeping to the socialist road, upholding CCP leadership, following Marxism-Leninism-Mao Zedong Thought and submitting to the people's democratic dictatorship. Such provisions leave groups no space at all to represent sectors of society which come into conflict with government or officials, let alone the opportunity to express unpopular or dissenting points of view.
The authorities are given broad scope to forestall any attempt on the part of the social group to go against these broad ideological prohibitions. Among the circumstances listed in SGR Article 13 and NEUR Article 11 in which groups or units which are not to be registered are: "when there is grounds to prove that the objectives and the professional scope of the social group/unit applying to prepare for establishment are not in accordance with the stipulations of Article 4" (Clause 1); "when the initiator or persons in responsible positions are currently or have ever been sentenced to the criminal punishment of deprivation of political rights, or are not able to assume full civic responsibility"12 (Clause 3); the above-mentioned monopoly rule (Clause 2); submitting false information in an application (Clause 4); and the catch-all clause so familiar from other PRC laws and regulations "other circumstances prohibited by law or administrative regulations" (Clause 5). SGR Article 19 bars social groups from establishing regional-level offices, and requires that all branches or representative offices of groups need to be approved by the sponsor and separately registered with the appropriate civil affairs departments. NEUR Article 12 prohibits such units from setting up branches altogether.
The sections on punishments provides for administrative sanctions, fines and criminal penalties. Under SGR Article 33 and NEUR Article 25, the civil affairs departments may order a group or unit to make reforms, to suspend its operations or change responsible personnel, as well as ordering its dissolution, for the following types of actions: fraudulent use of the group's status, or profit-making activities; engaging in activities outside the scope of its objectives or charter; refusing to accept "supervision"; setting up unauthorized branches; and violating unspecified state regulations on raising funds and receiving assistance.13 Fines of between one and five times the amount of funds raised through illegitimate business activities or ill-gotten gains may be levied. SGR Article 34 and NEUR Article 26 state that if a group violates "other laws and regulations" which are the responsibility of other government departments, these may request that the civil affairs departments close down the group or unit in question. SGR Article 35 and NEUR Article 27 are particularly vague and threatening, allowing for criminal sanctions or criminal detention 14 for, in the case of social groups, "those who, without having received official permission, initiate preparatory activities" and in the case of both, for social groups or units which "initiate activities without being registered, and those who continue to carry out activities in the name of a social group/unit for which registration has been revoked." The lack of definition of "preparatory activities" is particularly troubling, since people wishing to establish a group have to do a significant amount of work to prepare all the necessary conditions for finding a sponsor and filing an application. In recent years, many individuals have been detained and sometimes sentenced to labor camp terms merely for attempting to register a social group.
Finally, SGR Article 39 requires that all social groups must re-register in accordance with the new rules within a year after their promulgation. This will inevitably entail a significant purge of existing organizations. During the last re-registration exercise following the enactment of the 1989 Social Group Regulations, some 30,000 groups were ordered closed down. Furthermore, social groups have just gone through a nationwide "rectification" which began in early 1997, in which some were deregistered. And the rectification campaign started, there has been a moratorium on the registration of national groups, which also applied to provincial and local-level organizations for varying periods of time. NEUR Article 31 requires that all people-organized non-enterprise units must register in accordance with the regulations within a year of their enactment. This is also likely to mean that some non-profit initiatives are closed down or are effectively taken over by official departments.
The stringent requirements for registration will make it impossible for associations formed by poorer citizens to register, and will thus bar the development of self-help groups and other such associations. The minimum membership requirements effectively mean that only large groups will be permitted to exist. The inordinate number of documents and length of time to wait before a group is formally established create formidable barriers to association. The new laws also deprive a whole category of people of their rights to form or serve in associations or non-profit entities for life. Under Article 56 of the Criminal Code, those convicted of offenses "endangering state security" are automatically sentenced to deprivation of political rights, and thus these people may never set up or become officials in a social group or non-enterprise unit.
Although the SGR and the NEUR specify that neither the sponsor nor the civil affairs departments are permitted to charge for their supervision of groups or units - they are evidently allowed to levy unspecified fees for other services, including registration itself - undoubtedly negotiating the continuing bureaucratic obstacle course the regulations set up will entail greasing many palms.
Even if they are able to register, groups and units will have to spend a great deal of time, money and energy on fulfilling all the bureaucratic requirements for their "supervision" listed in these regulations.15 This will lead to further bloating of the bureaucracy, and create even more opportunities for rent-seeking officials to cream off money intended for charitable purposes. The level of official interference in the day-to-day affairs of groups and units permitted by these regulations is entirely unnecessary, as well as being an unacceptable infringement of freedom of association. The coming purge of groups and units is likely to eliminate or coopt some of the most innovative and useful initiatives Chinese people have struggled to create in recent years in the face of continuous official hostility. The lack of appeals procedures for any of the decisions mentioned completes what is evidently an arbitrary system granting the authorities virtually unlimited discretion to block and ban associational and non-profit activities "according to law."
The new regulations are the latest indication that what the Chinese leadership means by "ruling the country in accordance with law" (yi fa zhi guo), one of the principal slogans put forward at last year's 15th CCP Congress, has little to do with what is commonly understood as constituting the "rule of law." Under the former concept, depriving citizens of their fundamental rights is perfectly acceptable, provided there is a written rule permitting it. And the rules are always written in such a way as to leave officials with broad scope to determine what they mean in practice. We believe that in order to realize the rule of law in China, the starting point should be to eliminate such vague and arbitrary provisions as the Four Basic Principles of the Constitution, mentioned above.
Unfortunately, some in the international community have ended up supporting such efforts to regulate away citizens' rights in the name of "legal reform," promoting civil society or assisting the development of the non-profit sector. For example, the International Center for Not-for-Profit Law (ICNL) in Washington, DC, and the U.S.-based Asia Foundation have assisted the Ministry of Civil Affairs' Department of Social Groups in its drafting of these new repressive laws.
ICNL has provided "consultation" for officials from this Department, including submitting a paper recommending revisions of the previous law. It appears that ICNL was introduced to the Ministry by the World Bank after the Chinese government requested advice on the issue of law on non-profits. ICNL is the author of the World Bank's draft Handbook on Good Practices for Laws Relating to Non-Governmental Organizations, a document criticized by the Three Freedoms project.
In its 1997 Annual Report, the Asia Foundation wrote: "NGOs in China, Japan, Nepal and Mongolia benefitted from Foundation support in developing laws governing NGOs." In China, this support went to the China Research Society for Social Groups, an "NGO" set up by the Ministry of Civil Affairs.16 Through this group, during 1997 the Asia Foundation funded study tours for Ministry officials including the head of the Department, Wu Zhongze, to the United States, Australia, Thailand, the Philippines, South Korea and Indonesia. Some of these countries are hardly appropriate models for legislation on the NGO sector.
We believe that international institutions and funding agencies, particularly those claiming to support programs on human rights, civil society, legal reform and good governance, should only give assistance to those initiatives which will genuinely promote the rights and freedoms of Chinese people. They must ensure that their projects are not merely contributing to extending the repressive capacity of the state.