New law and changes to the Chinese constitution threaten freedom of association

By: Alexandra Arkin 

On March 11, the Chinese parliament, the National People’s Congress (NPC), approved amendments to China’s constitution to abolish presidential term limits, clearing the way for Xi Jinping to remain in power indefinitely.[1]  The Communist Party of China’s announcement in February of the proposed change sparked debate on Chinese social media, and as a result, pushed government censors into overdrive.[2]

The NPC also approved two other amendments designed to solidify Xi’s supremacy.[3]  One amendment creates politically driven “supervisory commissions” to investigate civil servants and Communist Party members.[4]  The other officially adds Xi’s political philosophies/doctrine, referred to as Xi Jinping Thought, to the constitution.[5]  Xi Jinping Thought was previously written into the Communist Party of China’s (CPC’s) charter in October 2017.[6]

At its core, Xi Jinping Thought “is a blueprint for consolidating and strengthening power at three levels: the nation, the party and [Xi] himself.”[7]  It rejects Western ideas about democracy and free speech[8] in favor of Communist Party leadership/presence in all aspects of life.[9]  In fact, under Xi’s regime, which has already eliminated modest platforms for dissent once allowed by his predecessors, state control of people’s behavior is expected to increase.[10]

Article 35 of the Chinese constitution guarantees the rights to freedom of speech, press, assembly, association, procession, and demonstration.[11]  However, article 51 goes on to say that Chinese citizens, “in exercising their freedoms and rights, may not infringe upon the interests of the state, of society or of the collective, or upon the lawful freedoms and rights of other citizens.”[12]  Further, the CPC can violate article 35 with impunity because courts do not apply article 35 to protect the rights of the people if it would mean going against the government.[13]

One obvious way to suppress dissent is to target groups the party views as threats, including human rights groups and NGOs, whose freedom of association the CPC limits.[14]

Regulations enacted in 1998 further restrict freedom of association.[15]  As a result, human rights activists are silenced, and efforts to organize independently, “whether around issues of politics, religion, [labor], or human rights,” are repressed.[16]  Provisions included:

·         expanding the “registration and management” scheme once applicable only to “social groups,” to all non-profit initiatives undertaken by Chinese citizens

·         permitting a preemptive ban on the registration of an organization based on supposed evidence of how it might act

·         threatening organizations engaging in unapproved activities with detention and unspecified criminal penalties

·         tripling the length of time required to process a social group’s registration application and adding a third step in the approval process

·         forbidding national groups from establishing regional-level branch offices (thus limiting their coordinating capacity)

·         permitting considerable government interference in groups’ financial affairs

·         increasing the controls imposed on social groups by the government sponsors to which they must be attached

The Chinese government’s policies on NGO activity alternate unexpectedly between periods of relative openness and repression.[17]  This creates an uncertain environment where both domestic and foreign groups carefully choose their activities and self-censor.[18]

Both domestic and foreign NGOs must register with the government.[19]  However, previously there was no uniform law covering all the NGOs in China, so most were unregistered or registered as businesses.[20]  The Foreign NGO Management Law, which went into effect in January 2017,[21] seeks to end this by tightening control over foreign non-profits operating within China.[22]  The law creates additional barriers to the already limited rights to freedom of association, peaceful assembly, and expression.  It gives police unprecedented power to restrict the work of foreign NGOs in China[23] by transferring to the state policing agency the responsibility to oversee the registration of foreign NGOs, and to supervise their operations and pre-approve their activities.[24]  Police have wide discretion to oversee and manage foreign NGOs’ work, creating a risk that the law will be misused to intimidate and prosecute human rights defenders and NGO staff.[25]

The law also limits domestic groups’ ability to obtain foreign funding and work with foreign organizations.[26]  It bans political or religious activities that are at odds with the government.[27]  NGOs must not damage or undermine China’s national interests.[28]

One theory about the motivation behind the law is that by forcing all groups out into the open, the government will be able to see and control everything.[29]  Additionally, the disorganized and fragmented way the law was implemented may suggest a deliberate effort to make life difficult for some international NGOs in China.[30]  Exact regulations were not published until late November 2016, “leaving many NGOs scrambling to comply with the rules by Jan. 1., [2017].”[31]  Thus, overnight they were pushed from operating within a gray area into outright illegality.[32]  Some have filed temporary activity applications so they can keep working while trying to register.[33]  Others have chosen to work around the law, in spite of the risks.[34]  And still others, including the American Bar Association’s Rule of Law Initiative, completely ended their work in China or left the mainland temporarily.[35]

Under the law, foreign NGOs must find a professional supervisory unit (PSU), which is a government sponsor willing to vouch for the NGO.[36]  This has often been the most challenging step in trying to register.[37]  Sometimes this is because of the lack of detailed guidance on the law’s implementation and a lack of incentives for sponsors; other times, it is because the list of supervisory agencies does not contain PSUs for areas deemed politically sensitive.[38]  As of June 2017, no groups working for human rights, workers’ rights, or the rule of law had successfully registered.[39]

The law also requires foreign NGOs to report their planned programs and funding for the coming year to the PSUs.[40]  Some NGOs  -  even those focused on non-sensitive areas like poverty relief, with long-established connections with local government  -  fear that their PSUs would want to change the programs.[41]

Some NGOs that did register are uncertain about how strict their government sponsors will be, and whether they will be able to keep working as before.[42]

Critics believe the Foreign NGO Management Law was intentionally vague so the government could interpret it however it wants.[43]  In general, vaguely worded laws prohibit NGOs from engaging in certain activities, including advocating nonparty rule, “damaging national unity,” or “upsetting ethnic harmony.”[44]  This keeps them from addressing sensitive free speech issues.[45]

NGOs also face suspicion and could be closed if they adopt an investigatory and critical stance on issues like HIV/AIDS or environmental damage.[46]  Therefore, rather than challenge the CPC, all registered NGOs and many unregistered NGOs supplement the work of the state, focusing on providing medical or educational services, alleviating poverty, and environmental protection.[47]

Chinese security agencies routinely monitor NGOs’ communications and visit their offices.[48]  Some organizations have even had their offices raided, hard drives and documents confiscated, and staff members interrogated or detained.[49]  “[S]everal groups have reported attacks by armed thugs who were apparently hired by the authorities.”[50]

While it is too early to know the likely effects of the Foreign NGO Management Law for Chinese society broadly, one consequence may be less communication between Chinese and foreign NGOs.[51]  Since the law went into effect, China did make some efforts to improve communication with overseas NGOs.[52]  However, the law will probably continue to restrict the freedom of association and impair NGOs’ ability to do their work.

[1] Steven Jiang, China clears way for Xi Jinping to rule for life, CNN (Mar. 12, 2018), https://www.cnn.com/2018/03/11/asia/china-presidential-term-limits-intl/index.html.

[2] Kerry Allen, China censorship after Xi Jinping presidency extension proposal, BBC (Feb. 26, 2018), http://www.bbc.com/news/world-asia-china-43198404.

[3] Tom Phillips, ‘This could destroy China’: parliament sets Xi Jinping up to rule for life, The Guardian (Mar. 11, 2018), https://www.theguardian.com/world/2018/mar/11/this-could-destroy-china-parliament-sets-xi-jinping-up-to-rule-for-life.

[4] Id.

[5] Id.

[6] Simon Denyer, China’s leader elevated to the level of Mao in Communist pantheon, Wash. Post (Oct. 24, 2017), https://www.washingtonpost.com/world/chinas-leader-elevated-to-the-level-of-mao-in-communist-pantheon/2017/10/24/ddd911e0-b832-11e7-9b93-b97043e57a22_story.html?utm_term=.71251edf7192; David Tweed, Xi Jinping’s Theory of (Almost) Everything in China, Bloomberg (Oct. 25, 2017), https://www.bloomberg.com/news/articles/2017-10-25/decoded-xi-jinping-s-theory-of-almost-everything-in-china.

[7] Chris Buckley, Xi Jinping Thought Explained: A New Ideology for a New Era, N.Y. Times (Feb. 26, 2018), https://www.nytimes.com/2018/02/26/world/asia/xi-jinping-thought-explained-a-new-ideology-for-a-new-era.html.

[8] Denyer, supra note 6.

[9] Id.

[10] Jackson Diehl, China’s Communist leadership has a model of totalitarianism for the 21st century, Wash. Post (Oct. 29, 2017), https://www.washingtonpost.com/opinions/global-opinions/chinas-communist-leadership-has-a-model-of-totalitarianism-for-the-21st-century/2017/10/29/8b32fb10-ba74-11e7-a908-a3470754bbb9_story.html?utm_term=.10c6a9a22111.  New technology will play an important role in one particular system of social control:  Every citizen will get a “social credit” rating based on data collected through the internet, the financial system, and public surveillance.  This rating will be stored along with facial images, and those with bad ratings “will have good reason to fear being recognized by the regime’s ubiquitous cameras.”  Id.

[11] Xianfa Article 35 (2004), available at http://www.npc.gov.cn/englishnpc/Constitution/2007-11/15/content_1372964.htm.

[12] Xianfa Article 51 (2004), available at http://www.npc.gov.cn/englishnpc/Constitution/2007-11/15/content_1372964.htm.

[13] Brian Palmer, Is There Freedom of Speech in China?, Slate (Oct. 8, 2010), http://www.slate.com/articles/news_and_politics/explainer/2010/10/is_there_freedom_of_speech_in_china.html.

[14] China  -  Events of 2016, Human Rights Watch, https://www.hrw.org/world-report/2017/country-chapters/china-and-tibet (last visited Mar. 12, 2018).

[15] Freedom of association in China: Open Letter to Jiang Zemin, Head of State, and Hu Jintao, Secretary general of the Chinese Communist Party, Int’l Fed’n for Human Rights (FIDH) (Dec. 20, 2002), https://www.fidh.org/en/region/asia/china/Freedom-of-association-in-China; see generally Regulations on the Registration and Management of Social Organizations, Congressional-Exec. Comm’n on China (Oct. 25, 1998), https://www.cecc.gov/resources/legal-provisions/regulations-on-the-registration-and-management-of-social-organizations; see generally Provisional Regulations on the Registration and Management of Civil, Non-Enterprise Institutions, Congressional-Exec. Comm’n on China (Oct. 25, 1998), https://www.cecc.gov/resources/legal-provisions/temporary-regulations-on-the-registration-and-management-of-non-1.

[16] FIDH, supra note 15.

[17] Freedom of Association Under Threat: The New Authoritarians’ Offensive Against Civil Society  -  China, Freedom House (Nov. 13, 2008), https://freedomhouse.org/report/freedom-association-under-threat-new-authoritarians-offensive-against-civil-society/china.

[18] Id.

[19] Id.

[20] Zheping Huang, NGOs are under threat in China’s latest crackdown against “foreign forces”, Quartz (Jan. 4, 2017), https://qz.com/873489/ngos-are-trying-to-stay-alive-in-chinas-latest-crackdown-against-foreign-forces/.

[21] Nectar Gan, Why foreign NGOs are struggling with new Chinese law:  Thousands could be operating in a risky legal limbo, S. China Morning Post (June 13, 2017), http://www.scmp.com/news/china/policies-politics/article/2097923/why-foreign-ngos-are-struggling-new-chinese-law.

[22] Rob McBride, New Chinese law tightens control over NGOs:  Controversial regulation imposes ban on political or religious activities at odds with the government, Al Jazeera (Jan. 1, 2017), http://www.aljazeera.com/news/2017/01/china-ngo-law-170101083414954.html.

[23] Human Rights Watch, supra note 14.

[24] China 2017/2018, Amnesty Int’l, https://www.amnesty.org/en/countries/asia-and-the-pacific/china/report-china/ (last visited Mar. 12, 2018).

[25] Id.

[26] Human Rights Watch, supra note 14.

[27] McBride, supra note 22.

[28] Id.

[29] Id.

[30] Kristin Shi-Kupfer & Bertram Lang, Overseas NGOs in China: Left in Legal Limbo, Diplomat (Mar. 4, 2017), https://thediplomat.com/2017/03/overseas-ngos-in-china-left-in-legal-limbo/.

[31] Huang, supra note 20.

[32] Shi-Kupfer & Lang, supra note 30.

[33] Gan, supra note 21.

[34] Id.

[35] Id.  The law forbids engaging in political activity, but does not define “political activity,” causing some groups to err on the side of caution.  Id.

[36] Id.

[37] Id.

[38] Gan, supra note 21.

[39] Id.

[40] Id.

[41] Id.

[42] Id.

[43] McBride, supra note 22.

[44] Freedom House, supra note 17.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Id.

[50] Freedom House, supra note 17.

[51] Gan, supra note 21.

[52] Deng Xiaoci, 242 overseas NGOs register in China, Glob. Times (Nov. 3, 2017), http://www.globaltimes.cn/content/1073451.shtml.