In June 2010, we posted this
blog post on how China’s new nonprofit regulations – including new,
stricter regulations on INGOs in China’s Yunnan Province — were affecting
grassroots groups. The essay was reposted to Chinapol (aka C-Pol), an email
list of professionals working on Chinese policy issues. The following
discussion between Asia Catalyst ED, Sara L.M. Davis (also known by her
nickname, Meg) and Shawn Shieh
of Marist College is reprinted here with consent from both.
Shawn Shieh writes:
Meg,
Thanks for writing this up. I’m actually in the middle of translating the
Yunnan regs, so if anyone has the translation already and would be willing to
share, I’d be most grateful.
I had one question and a comment. In your discussion of the Yunnan regs
on foreign NGOs, you note that foreign NGOs will have to apply for approval
with the provincial Civil Affairs and then go on to say that this will make
them [government-organized NGOs, or] GONGOs. I didn’t understand the
connection. How does applying for approval translate into becoming a
GONGO?
My comment has to do with the larger question of NGO
regulation which has been the subject of some lively discussion on this
listserv. You call the Yunnan regs a tightening of control over foreign
NGOs, but let me present another way of looking at it. My understanding
is that foreign NGOs in China at this point aren’t really clear how to register
because there are no specific regs governing them, except for foreign chambers
of commerce. It’s a sort of “don’t ask, don’t tell” policy
where different govt depts and local govts have to deal with them on a case by
case basis. Foreign NGOs have been able to work in China by entering into
some creative arrangements with their local counterparts, but it’s not an ideal
situation. I think it’s in this context that the Yunnan govt is now
experimenting with clearer regulations governing foreign NGOs, just as other
provinces are experimenting with regs for other kinds of NGOs such as
community-based organizations (CBOs), trade associations, and
foundations. Perhaps the experience with these different experiments may
eventually percolate upwards to the center and shape the revisions of the NGO
regs that we’ve been expecting to come out for so long.
So I see these regs as a way to clarify the regulatory environment, rather than
as a tightening. It seems preferable to have some kind of clear standards
and guidelines for foreign NGOs than to have none at all, although of course
the devil is in the details and the implementation. If foreign NGOs
continue to be stymied by bureaucratic red tape and are unable to register
using these regs, then they may just go back to the old way of doing
things. Either way, with or without these Yunnan regs, foreign NGOs that
are not registered with Civil Affairs are technically illegal.
I’d be interested to hear what people working in foreign NGOs think about this,
on or offline.
On the issue of regulating both domestic and foreign NGOs, I’d like to highly
recommend Deng Guosheng’s article that just came out in Spring 2010 issue of
The China Review, “The Hidden Rules Governing China’s Unregistered NGOs:
Management and Consequences”. It sheds a lot of light on a murky
subject.
Shawn
Meg Davis replied:
Dear Shawn and colleagues,
Many thanks to Shawn for his thoughtful comments and
questions. I’d like to start by referring to Shawn’s useful interventions on
other C-Pol threads about the fact that there are a lot of different kinds of
GONGOs, some of which are empty shells for the purpose of collecting grant
money, and some of which do valid and life-saving work (Shawn, I was hoping to
find a post to this on your blog that I could cite in the article – if there is
one, could you send it offline?). Saying a group is “like a GONGO” is not
necessarily a statement about the value of the work the organization does, but
more a comment on the restrictions and controls on that work.
When I wrote the blog post on China’s NGO regulations, I
would have spent more space elaborating on the Yunnan regs, but the post was
already quite long; I’m happy to have a chance to do so now. To start, I need
to make reference to international rights law, quoting from the report I wrote
for HRW in ’05 on restrictions on AIDS NGOs
in China:
“Under the International Covenant on Civil and Political
Rights, which China has signed but not ratified, China has the right to
restrict freedom of association, so long as those restrictions are ‘necessary
in a democratic society in the interests of national security or public safety,
public order, the protection of public health or morals or the protection of
the rights and freedoms of others’. Any restrictions should be interpreted
narrowly, and be proportionate to the reasons for them; a government should use
no more restrictive means than are absolutely required. While the state has the
right to ensure that NGOs are honest and transparent, legal requirements should
be minimal, clear, and attainable, permitting maximum flexibility for NGOs to
establish themselves and perform their daily work. They should be enforced
without discrimination.”
In other words, as Shawn and Karla correctly note, states do
have a right to restrict registration or establishment of NGOs, and this is
something that all countries do. To take the US as an example (not because it’s
a model, but because it’s the system with which I’m most familiar), someone
registering a nonprofit needs to first file incorporation papers with the
state, and then file much a much longer application with the federal government
in order to obtain tax-exempt status. In founding Asia Catalyst, I went through
both those processes with the help of a pro bono lawyer. While this was
certainly a lot of annoying paperwork that had to be done carefully, the
requirements were clear, attainable, non-discriminatory, and did not prevent
our organization from getting down to business right away. I didn’t have to
have guanxi [personal connections] in the state attorney general’s office, or
in the IRS. My lawyer and I didn’t have to buy gifts or take anyone out for
expensive meals. We sent in the paperwork registered mail and got a letter of
determination back within the legally-mandated time frame, end of story.
The Yunnan regulations (they’re here in Chinese, looking forward to the
translation) are not minimal, clear, and in many cases will not be attainable.
They also are not simply a matter of filling out paperwork and mailing it in.
They require foreign NGOs to obtain “approval” for their work from multiple
different, sometimes vaguely defined departments; the documents required are
left to the discretion of those departments.
More to the point, because of the vague way in which these
regs are written, in practice there is broad leeway to implement them in a
discriminatory manner. In practice, in order to register with the Civil Affairs
Bureau, the foreign NGO in question is going to basically need a
“mother-in-law” agency (a la the GONGO registration requirements); that is,
some senior official or friendly high-ranking department that can pull strings,
make calls, maybe take some people out to lunch, and smooth the way to
registration. That official or agency will then be held accountable for
whatever the foreign NGO does, and will have some say over decisions the
foreign NGO makes. If the foreign NGO plans something that someone in power
finds anxiety-producing, the first call is probably going to go to the Chinese
friends who helped facilitate registration.
Of course, to some degree this is already what happens for
foreign NGOs that open offices in China, as most of them will say off the
record. Most of them won’t say it or anything critical about NGO management on
the record (as one journalist pointed out, writing to me offline about how
she’d like to write about the Yunnan regs but can’t find any foreign NGO to
comment for the article). This is just part of why some ticked-off Chinese AIDS
activist friends tell me they already think of most foreign NGOs working in
China as being GONGOs. If Asia Catalyst ever tries to open an office in
Beijing, I expect we’ll have to become the same way – it’s the nature of the
game.
That said, Shawn, I’m intrigued by your reference to “other
provinces…experimenting with regs for other kinds of NGOs such as
community-based organizations (CBOs), trade associations, and foundations” and
would be grateful for references/info, either online, offline or on your blog.
If this is part of a larger trend, it would be interesting to do some comparing
and contrasting.
However, I’m not persuaded by your prediction that
organizations that fail to register in Yunnan will just go back to doing things
the way they were before. But I guess we’ll just have to wait and see how the
regs are implemented.
Meg
Shawn Shieh replied:
Meg,
I think we have somewhat different interpretations of what a GONGO is, and
maybe that’s where my original confusion came from. To me, a GONGO is an
“NGO” established by a party or government agency but registered with
Civil Affairs as an NGO with the agency that established it being its
“mother-in-law” or professional supervising unit. The state
provides funds and staff for the GONGO, and determines its leadership.
Most GONGOs also have an administrative rank. Then there are
“real” NGOs, some of which are registered with Civil Affairs and have
a professional supervising unit, but nevertheless are private, formed
voluntarily and self-governing. I think there is an important and very
real distinction to be made between the former (e.g. GONGOs or top-down NGOs)
and the latter (e.g. bottom-up NGOs), and we shouldn’t conflate them simply
because they have a “mother-in-law”. It’s one thing to have a
“mother-in-law” for registration purposes (and as a number of NGOs
I’ve spoken to indicate, the “mother-in-law” is largely pro forma and
doesn’t really supervise the NGO that closely). It’s quite another to
have your funding, staff and leader come from the party-state.
I’ve written a post on the distinction between GONGOs and NGOs in my blog that is available at https://ngochina.blogspot.com/2010/06/defining-ngos-in-china-10.html.
Shawn
