30 Lawyers’ Proposal to NPC on Halting the Enactment of Foreign NGO Management Law
On May 5, 2015, the legal working committee of NPC Standing Committee released Foreign NGO Management Law (draft upon second deliberation) (“Draft”). This Draft is dedicated to “overseas” civil non-profit organizations, and requires a variety of administrative permission on overseas civil non-profit organizations from establishment of representative organizations in China to exchange, cooperation, activities, donation and personnel recruitment. We discovered that this Draft, roughly written and hardly operable, lacks research on feasibility, necessity and urgency. This draft mistakenly follows experiences of countries with multi-party system like Russia. Therefore, we suggest NPC Standing Committee halt the adoption of Foreign NGO Management Law, further deepen reform and opening, and promote instead of impeding civil exchange in and outside China. Our reasons are as follows:
1. This legislation project, launched in a hasty manner and lacks sufficient argumentation, is an arbitrary legislation
On October 30, 2013, NPC Standing Committee published the legislation plan for the 12th NPC Standing Committee, including in total 68 legislative items of three major categories. Foreign NGO Management Law was not among the said items, which shows that legislative authorities did not deem it was pressing to adopt this legislation. However, at the 12th meeting of NPC Standing Committee held at the end of December 2014, this law was abruptly proposed by the State Council for deliberation. Legislation is a scientific and serious process. This law will have wide-ranging influence upon exchange and economic and social development in and outside China, and should go through sufficient legislative planning and argumentation. Without long-term social discussion and theoretical foundation, it will be very difficult to enact a rigorous, regulatory, systematic, scientific and effective law. The consequences will be too ghastly to contemplate if such law is adopted in such an arbitrary way.
2. Several provisions of this Draft violated the principle of necessity as provided in the Administrative Permission Law and relevant administrative laws
Article 13 of the Administrative permission Law provides that “for the matters listed in Article 12 of this Law, which may be regulated through the following methods, the administrative permission are not required to be established:
1. Those can be decided by the citizens, legal person or other institutions themselves;
2. Those can be effectively regulated by the market competition mechanism;
3. Those may be subject to the self-discipline management of the trade organizations or intermediary institutions;
4. The matters that can be solved by the administrative organs by means of supervision afterwards or through other administrative methods.”
The international exchange and cooperation among civil non-profit organizations may be fully accomplished by self-discipline management and post-supervision by trade organizations. In fact, for more than 30 years of reform and opening-up in China, the post-supervision mode has always been proved effective. The international exchange and cooperation among non-profit organizations are carried out in an orderly manner. “No additional permission unless necessary” is also a basic principle of authorization to administrative power. This law sets prohibitive provisions and approval as principles on the international exchange and cooperation among civil non-profit organizations, with the exception of the freedom of private civil rights, and is against the necessity principle as provided in the Administrative permission Law and relevant administrative laws.
3. With unrefined and inexact text, poor operability, and an excessively large scope, this Draft is in violation of the fundamental national policy of “reform and opening-up” as well as the State Council’s reform spirit of “streamline administration and power delegation”.
Article 6 of this Draft provides that “non-governmental organizations should conduct activities in China through its representative organization lawfully registered. Unregistered representative organizations should first obtain temporary approval if they need to conduct activities. The word “activity” sets a prior approval restriction on international exchange and cooperation of all civil non-profit organizations. However, as the expressions such as “activity”, “project”, “approval” and “consent” lack exact definitions, this Draft has too much flexibility and ambiguity. The law enforcement authorities will be granted with too much discretion in its implementation, and the abuse of power by these authorities will occur on a frequent basis.
Premier Li Keqiang stressed on numerous occasions that streamline administration and power delegation is, by way of simplifying matters subject to government approval, to release control as much as possible to the market regulation and the society at large. The government should leave alone all matters it could not intervene and manage all matters in its scope of responsibility. The expression “forbidden” appears 24 times in the full text of this Draft. Too many prohibitive provisions set administrative permission on all activities related to overseas non-profit organizations. It violates the fundamental national policy of reform and opening-up and the State Council’s spirit of “streamline administration and power delegation”, and cannot demonstrate the self-confidence of a great and emergent nation.
4. This Draft has little contribution but much negative impact to its purpose of public security protection.
In the past, administration and legislation on civil organizations were generally led by civil affairs authorities, but the legislation of this law and its subsequent implementation are led by the public security authorities. The legislative purpose is evidently to protect “public security”. However, as overseas civil non-profit organizations that carry out activities within China, as well as, Chinese organizations and individuals with overseas cooperation have been suffering strict control and monitoring by public security, state security and civil affairs authorities, their existence is already like treading upon eggs, still less of affecting the “public security”.
It was reported that, among overseas civil non-profit organizations that conduct activities in China, half of them are business organizations such as chambers of commerce and industrial associations, and the other half are charity and public interest organizations. As is known to all, there are a small number of overseas civil organizations for rights protection that are active in China. They have very small scale, very limited space and liberty and very few activities, and are constantly investigated, searched and administrative punished by authorities such as tax, administration of industry and commerce, public security and entry and exit administration. They have already made endeavors to be flexible in order to exist. Therefore, it is obviously a mis-stated and exaggerating to compare the rights protection organizations active in and outside China to “Color Revolution” and “Jasmine Revolution”.
If adopted, this Draft will indeed result in impact on rights organizations that are truly concerned by the government, however the impact will be very limited to them for the reasons above. But it’ll form an unexpected impediment to a large number of overseas civil organizations in the fields of culture (art), education, medical care, poverty alleviation, science and economy (chamber of commerce, trade associations, etc). A lot of overseas civil organizations have compliance departments, and lawyers in this department will recommend them cancelling projects in China. This law obviously will cause unnecessary international dispute, and affect amicable relationship between nations. It is “penny wise and pound foolish”.
5. China is different from countries with multi-party system that provide freedom of association such as Russia, Egypt and India, and should not be misled by experience of such countries.
In recent years, Russia, Egypt, India and some countries in Central Asia and North Africa have successively reinforced administration on non-governmental organizations. However, the situation of these countries is obviously different from that of China. These countries have multi-party system, where the freedom of association is valued in general, and civil organizations enjoy much liberty and power in conducting its activities. Even if these countries tighten the administration and monitoring on civil organizations, their civil organizations still enjoy more liberty than those in China with one-party rule. To follow the administration and monitoring experiences of these countries will be no different from “master follows apprentice”.
In conclusion, we consider that if Foreign NGO Management Law (draft upon second deliberation) is adopted in a hasty manner, it will be against the fundamental principle of administrative legislation, harm China’s open and self-confident image of a great nation, and create unnecessary international dispute. We hereby suggest halting this legislative process.
June 3, 2015
Proposed by: (Name, City)
Zhao Hejun, Beijing
Zhu Xiaofei, Beijing
Sun Bin, Beijing
Song Yusheng, Beijing
Lin Qin, Guangzhou
Chen Ming, Guangzhou
Huang Sha, Shenzhen
Liu Yige, Tianjin
Liu Wei, Zhengzhou
Hu Yihua, Guangzhou
Li Ji, Luoyang
Jiang Pan, Shenzhen
Gao Shang, Beijing
Yang Mingkua, Kunming
Liu Shuqing, Jinan
Zhang Yujuan, Changsha
Ta La, Inner Mongolia
Yu Yin, Kunming
Yang Zheng, Zhengzhou
Wang Fengrong, Wuxi
Wang Yu, Beijing
Li Qin, Shanxi
Yang Weiguo, Hunan
Jiang Yuanmin, Shenzhen
Xie Jing, Chengdu
Zeng Lei, Beijing
Wang Rong, Shenzhen
Liu Yun, Urumqi
Fan Zhongxin, Hangzho
Lin Qilei, Beijing