Foreign NGO Law - A Spell over China’s Civil Society

“Law of the People’s Republic of China on Administration of Foreign Non-Governmental Organizations Activities within China” (hereafter Foreign NGO Law) came into effect on January 1, 2017. Together with the “Charity Law” which became effective since 1 September 2016, these two laws were implemented within a few months to regulate activities of civil organizations. In line with Xi Jinping’s approach of “governing the country by law”, they restricted citizens’ rights by legal frameworks to achieve political stabilization. The laws provided a more grounded legal base for arresting and prosecuting dissidents, so that it would not be necessary to use “pocket laws” such as “picking quarrels and provoking trouble” and “illegal assembly and disturbance of public order” in prosecution.  The Foreign NGO Law is actually tightening up the space of civil society.  The purpose of its legislation and its potential impact could be considered from two aspects: 1) the set-up of monitoring system, and 2) regulations on business scope.

Dual-management by public security and administration department puts all NGO activities under surveillance

First of all, the law requires all foreign NGOs operating in China to register with the Public Security Department (Police) through relevant “professional supervisory units”. This requirement treats foreign NGOs as potential threats to social order and places the foreign NGOs under the management of the public security department.  At the same time, the foreign NGOs have to submit work reports and financial reports to “professional supervisory units” and declare their financial sources and transactions, and details of their funding plans (Article 19 and 20). In other words, all activities and financial information of the foreign NGOs are under close monitoring of government departments. Under this monitoring system, domestic NGOs receiving funding supporting from or cooperating with foreign NGOs are also under full surveillance. In a democratic and free country, an accountable NGO has the due diligence to disclose operations and financial details to public. However, in a totalitarian state ruled by persons, such as China, stringent monitoring systems are government’s tools to control domestic and foreign NGOs. Activities and projects operated by foreign NGOs in the country are under the regulation of Foreign NGO Law.

“Grey areas” disappeared as business scopes are regulated

According to Article 3 of the Foreign NGO Law, “foreign NGOs may carry out activities that will benefit the development of public welfare in such fields as economy, education, science and technology, culture, health, sports, environmental protection and in such aspects as poverty alleviating and disaster relief in accordance with this Law”. The Foreign NGO Law also states that foreign NGOs “shall not threaten China’s national unity and safety and the unity of all ethnic groups of China; shall not jeopardize China’s national interests”, and that “foreign NGOs shall not engage in or provide financial support to for-profit activities or political activities within China. They are also forbidden to illegally conduct or sponsor religious activities.” (Article 5) These clauses set limitations on activities of foreign NGOs and excluded political activities disapproved by Chinese Communist Party from legal framework. One can expect that besides socially high-risk organizations (such as human right or social advocacy groups), other foreign NGOs not working within the above business scope will also have difficulties in finding a “professional supervisory unit” and become legally registered for activities in China.

Civil society disempowered upon as new law takes effect

The purpose of the Foreign NGO Law is to screen organizations acceptable to Chinese Communist Party through “professional supervisory units”, legalize their status through registration and “file documentation”, and drive unwelcomed organizations out of China. As the Foreign NGO Law came into effect, civil society in China can no longer work under the “grey area”. All organizations which do not have the blessings from “professional supervisory units” are considered illegal. However, the law only listed general screening criteria (such as “shall not jeopardize China’s national interests” or “involved in political activities”) without elaborations or objective standards of these actions. The definition of eligibility would be fully controlled by local “professional supervisory units” and public security department.  The law has granted local government departments the “flexibility” which put many foreign NGOs in ambiguous situation.  The person-in-charge of an organization with projects in various parts of China said, “Sometimes the registration depends on the relations between the organizations and related departments, and how much the local government relies on the projects. For example, provinces relatively poor in resources usually hold more open attitude to NGOs.” Definition of sensitive issues also varies according to local politics. Some provincial or prefectural governments are more tolerant to environmental organizations investigating private enterprises which violated environmental protection laws, as they can maintain relations with the enterprises while meeting the directives handed down by the Central Government. However, similar behaviors may not be acceptable in other provinces or prefectures. In the future, one organization may be registered in some provinces and prefectures while forbidden to operate in other provinces or prefectures.  The risk of “making mistakes” would be much higher for some organizations which have been operating along the borderlines. For self-protection, these organizations may stop operation of high risk projects in the future.

The impact of enactment of Foreign NGO Law on those organizations working along borderlines may mostly be change in strategy or creation of more administrative workload. However, for those civil rights-based organizations, the law means “China does not welcome you to work in the country”. By excluding these organizations from the legal framework, it also raises their risk levels as they are considered illegal organizations in the country. In the future, if the Chinese government wants to outlaw these organizations or arrest their staff, there’s no need to use the “pocket laws” which are weak in legal basis. The basis for “law enforcement” will be stronger and the political cost will be reduced. This is in line with Xi Jinping’s approach of “governing the country by law” by limiting spaces of civil society with draconian laws. It also posts threats to foreign NGOs which are operating in “grey areas” or “restricted areas”. Some international organizations are preparing to withdraw from China and relocate their resources to regions with lower risks. The implementation of Foreign NGO Law has immediately resulted in self-censorship or relocation by some foreign NGOs, which has somehow weakened the strength of Chinese civil society and social reform.  No matter how the new law will be implemented and executed in the future, it is already creating more difficulties to civil society and NGOs in China.