Jia Xijin: Considering the Foreign NGO Management Law From the Perspective of National Security
China has been actively advancing its legislation on managing foreign organizations, and NGOCN interviewed Jia Xiqin, deputy director of Tsinghua University's NGO Research Center.
NGOCN: Professor Jia, the NGO management legislation has gotten a lot of attention. Could you give us a bit of background of the Law on the Foreign NGO Management Law (second reading draft)?
Jia: The government has sought to include foreign organizations within the scope of government management for a long time. Other than 1989's Provisional Regulations on the Administration of Foreign Chambers of Commerce and 2004's Regulations on the Administration of Foundations which regulated the establishment of Chinese representative offices for oversea foundations, foreign NGOs have not been brought within the Chinese legal system. In 2009, Yunnan Province introduced the "Provisional Regulations on Regulating the Activities of Foreign NGOs" and this was a nationally authorized pilot legislation.
Attention is paid to foreign NGOs within the context of state security. The "Color Revolutions" at the start of this century caused foreign NGOs to come into the state's field of vision, and have colored this concept. In 2010, India revised its "Foreign Contribution Regulation Act" with more stringent regulations on foreign funding of non-profit organizations, and in 2012, Russia increased legal restrictions on entities that receive foreign funding and participate in domestic political activities as “foreign agents”; this all led the Chinese government to take this seriously. In 2009, the State Administration of Foreign Exchange published the "Notice on Issues Related to the Administration of Foreign Currency Contributions to Mainland Entities", which was a move to financially limit the activities of foreign non-profit organizations. Two days after the second draft of the Foreign NGO Management Law was made public, the second draft of the National Security Law was released for public comment; and the timing can't be called a coincidence. In fact, the legislative background of the “Foreign NGO Management Law” occurs within the background of national security, and is one more link in this government's' series of measures including the establishment of a National Security Committee’s and strengthening of national security legislation. The legislative intent and approach determine the basic conceptual understanding and rule-making on foreign NGOs.
However there is a problem here, which is that when the legislation used a broad scope in identifying organizations, it covers every aspect of social life and public affairs. Yet the regulatory principles have very narrow viewpoint that is extremely focused on national security principles. As a result, this national security perspective covers all foreign social organizations. In the UK, the US and other developed nations, public association is an essential component of a social life and public affairs. This is therefore tantamount to hoisting up state security to become a major dimension of international relations. The ubiquitous impact of global economic integration, social interaction, cultural exchanges, and expansion of the internet in this age cannot be denied. There are two reasons for establishing the legislation from the national security perspective: first, it is considered preferable to impose excessive restrictions on a large number of positive organizations rather than risk the possibility of missing a rare potential threat to national security, and thus the scope of coverage has to be expanded to give law enforcement power to address the possibility. Second, there’s insufficient awareness of NGOs in China, entry points for foreign NGOs are also points for national security concern, and although one can only think of a few organizations, there is an understanding of what is meant by "foreign NGOs" The majority of people have never encountered foreign NGOs, yet they already have formed an idea of what they are. It is their knee-jerk response to correlate foreign NGOs with "hostile forces abroad", "political change" and "state security". This is the background in which the current version of the draft has taken shape.
NGOCN: Now, the draft is more than 60 articles, which do you think have the most impact on foreign NGOs?
Jia: A fundamental problem in the legislation, is that is actually both a law on organizations with a law on conduct added in, and moreover that conduct is not limited to the conduct of a formal organization, but also includes temporary group activities. It can be seen as including any non-profit organization and any conduct in its coverage. The coverage of this legislation is extremely broad, and with this kind of definition and considering all the social organizations providing public services in areas such as education, medicine, sport, public services, environment, in England, the US and other countries where NGOs are more developed, it includes communities groups, the Red Cross, almost all the Ivy League schools, health and cultural institutions, business associations, and so on, and essentially covering all of a nation's social organizations. So the scope of covered organizations is extremely broad.
At the same time, the definition for "activities" is also very broad. As such, any kind of conduct in coming to China, and all contact involving China by these foreign NGOS, and actually majority of entities and all activities for contact between foreign society and China are all brought within its coverage. That is to say, that we are actually using a kind of national security perspective to view all of international relations. China has all types and kinds of connections internationally, and while national security is of course one dimension, it is a very limited dimension and is a bottom line safeguard. Social governance is needed in national security, and in economic development, including public affairs between governments and greater amounts of conduct, it should be a field of public governance, but this kind of broad delineation putting all international conduct under a controlled state, using a national security perspective to position the entire nation and public life involving foreign nations, this sort of coverage is all encompassing (of foreigners).
Of course it can be expected that actual enforcement of the law would not be widely implemented, it would not be possible to do so, even if the police had 10 times the man power it wouldn't be enough. But if the the definition was rigidly applied, it's scope is really this broad. Selective enforcement is the biggest problem.
Another related issue is the concept of "foreign NGO", which is also very controversial. Because there is no definition in the Chinese legal system for the concept of "NGO"; but only legal definitions for associations, private non-enterprise units, and foundations, the Foreign NGO Management Law doesn't link in well , so this will require an independent system of interpretations. So the power to interpret the law becomes a critical power, as currently the definitions of "non-governmnetal, non-profit social organizations" is extremely broad.
There are several conclusions to be made about this legislation overall: 1) the scope of the the law's coverage appears limitless, 2) Interpretive power is immense And these result in consequence 3) the discretion given to law enforcement agencies to selectively enforce the law. This kind of legislative intent is like that of the "dual management system" provided for domestic social organizations, it leaves a large number of organizations and behaviors in the open and at risk; there's no knowing when the law will be enforced, and when it is applied, it's broad definitions can be applied to any circumstances.
Of course, national security considerations might require this kind of independence and discretion, but this runs contrary to a rule of law mentality. I think these are the basic problems, the rest is in the details.
NGOCN: This will cause selective enforcement?
Jia: It has to. If it isn't selectively enforced, the entire justice system would be paralyzed from the first day of enforcement.
NGOCN: What effects would this draft have on domestic public interest organizations if implemented?
Jia: If this legislation's broad definitions were followed to impact all foreign social forces, it will not only affect Chinese NGOs, but also the entire Chinese society, and even impact the economy and ecology. Of course this assumes that the law would be strictly and widely enforced, but it won't really have this large an impact, because it can't really be widely enforced. If we consider a strict enforcement, with large numbers of foreign organizations and activities being obstructed or withdrawing from China, it would be a blow to China's social and public affairs, and even bring an economic impact. A society's openness, society and economy are extremely linked; for example, if scientific , educational, cultural and health exchanges stagnate, that is also the stagnation of a society's vitality, and is connected to economic benefit; social organizations are the locus of contributions to vitality and the economy. If social vitality severely recedes, it will definitely effect the economy in turn. For example, if the number of scientific, educational, cultural and health activities decreases dramatically; like international exchanges for Chinese universities, medicine, and public affairs; and each spontaneous activity requires permits, you can imagine the social and economic impact.
If this draft law is adopted and strictly and widely enforced, the impact will not only be felt by the public sector, but in the broader economy and society spheres as well. Of course it is almost certain that this law cannot be strictly and widely enforced, but the general direction of the law could very well harm and reduce openness.
NGOCN: According to your predictions, what effects will the draft have? Can it be adjusted?
Jia: Because it's not a few articles of the draft that have a problem, but that that the legislative intent that is a problem, the it isn't as simple as adjusting the law. The actual effects might be: 1) some organizations receiving extra scrutiny will have face a question of survival and 2) large numbers of international public interest exchange activities in areas such as science, education, culture and health, will face more complicated regulations and greater costs in time and money. and 3) is that there will be a stronger legal basis for future government law enforcement. Domestic organizations will have to consider the withdrawal of foreign resources.
As to amending the provisions of the draft, there's an issue worth pointing out: there needs to be an appeal process established for rejections and non-approvals. Also, foreign organizations are different from local grassroots organizations, and have stricter demands for the law, legal rights should be further improved at least in terms of procedure.
NGOCN: Won't this increase the threshold for foreign organizations to enter into China? For example, it will be very expensive for foreign social organizations coming into China for exchange purposes. .
Jia: I think INGOs will take the strategic steps to strategically re-position themselves, but because the legal definition is too broad, some organizations might not even realize that they are also being covered by the law. For example, when a Harvard professor comes to China for academic exchange purposes or recruitment activities, they need to find a Chinese partner, find a professional supervisory unit, obtaining approval of public security departments, and so on. All these activities will be affected. They may not currently be aware of these issues, but schools really are non-governmental, non-profit organizations, and are covered by the draft. What about doctors coming to China for volunteer purposes? Cultural and art exchanges? Many new procedures have been added for cultural activities. I think that currently only NGOs operating in China, such as foundations and social groups, are aware of their status, but as to whether other organizations such as hospitals, schools, culture and artistic groups, have acknowledged this problem, we will have to wait and see actual practice.
NGOCN: if the draft it to take effect, will there still be room for adjustments?
Jia: Actually, I think that if you want to consider regulation of foreign forces from a national security perspective, a conduct-based law is more appropriate. If it's a law on organizations, we can consider amending it to a narrower understanding of its definitions, but this kind of amendment is still difficult to operate because a large number of foreign NGOs are registered as local companies, or do not register at all, so how should the definitions be draw in this situation? Also, where should the line between activities of individuals and foreign organizations be drawn? A Harvard professor coming to China for exchange could be considered as personal action, but when 10 Harvard professors come over is it organizational or individual action? For countries like the United States with a tradition of autonomy, it's hard to find someone who isn't affiliated with an NGO.
So, right now the definitions are too vague, it's just not possible to use legal principles to consider this draft, there is only the though the thinking of enforcement, and there's no consensus on who these laws would be applied to.
One path would be to only look at branch NGOs established in mainland China, this would shrink the focus tremendously, and it will would give clear definitions and boundaries, only regulating foreign NGOs establishing a branch in the mainland.
NGOCN：It seems that the current problems can't be solved by amending the draft. .
Jia: No, it can't be solved with amendments, although there are some revisions that could be made to some articles. It is a problem of legislative intent, if our legislative intent did not emphasize national security so strongly, it would address foreign NGOs together with domestic and wouldn't need to emphasize whether they were a foreign organization or not; for activities in China the same conduct would receive the same regulation, for example, currently social organizations, private non-enterprises, and foundations all have corresponding law, and there is absolutely no reason to distinguish between foreign and mainland organizations, treating them the same without distinction works fine. This isn't a technical legal issue , but a question of intent. The legislative intent includes identifying, monitoring and limiting foreign funding; this is a question of perception and understanding.
Thank you for the translation. I am writing to point out a minor typo/mistake under article 7: the original text reads “国务院有关部门和县级以上地方人民政府有关部门在职责范围内负责境外非政府组织管理工作。” your translation reads “The relevant departments of the State Council and local people’s governments at the county level or above are responsible for management of foreign NGOs within the scope of their duties.” It should be “the relevant departments of the state council and local people’s governments higher than the county level” not “at the county level or above.”
I think you may have meant to put this comment on the FNGO law translation?
It is our understanding that the use of 以上 includes the level actually mentioned. In this case that would include the county level governments.
Consider for example Article 155 of the 民法通则 ：第一百五十五条 民法所称的“以上”、“以下”、“以内”、“届满”，包括本数；所称的“不满”、“以外”，不包括本数