China Passes National Security Law

Ready for National Security!

Within a day of its publication of the second Draft Foreign NGO Law on May 5, the Chinese government also published for comment a Draft National Security Law.  Today, that document became law. Although criticized for its vagueness and breadth, the passed law is still just as broad if not more so.  The new law also covers protection of seabeds and adds the word “extremism” to the provision on terrorism (Article 28), a provision that immediately follows the one that protects “normal religious activity” and calls for the opposition to foreign influences and interference in domestic religious affairs (Article 27).

The law itself comes off more as abstract principles. But make no mistake, the Chinese government and the Public Security Bureau which has oversight of the Law, means business.  The fact that they elevated this abstract document to the level of a law is a telling sign and foreign governments should be looking at it carefully.

The full English translation of the National Security Law has been published at China Law Translate and can be found here.

Just For Fun: Art Review – China Through the Looking Glass

By , June 17, 2015

 

China Through the Looking Glass

China Through the Looking Glass

Picasso did it with Africa; Gauguin did it with Tahiti; Remington with the American West  And, as we learn from the Metropolitan Museum of Art’s amazing new show, China Through the Looking Glass, many of the West’s greatest fashion designers have done it with China.  What is the it?  Using another culture for inspiration for your art.

But as the first room in this exquisite exhibit demonstrates, this show is not about China.  It is about the fantasy that China is for many of the West’s most famous designers: Paul Pioret, Chanel, Alexander McQueen, Yves Saint Laurent.  Each of these designers have looked to China for inspiration, using their interpretations of China in their designs.  This is strikingly clear in the first room of the exhibit – an incredible display of mirrors, movies, music and clothing.  Each of the Western dresses are showcased next to a traditional, Chinese imperial piece of clothing (graciously on loan from Beijing’s Palace Museum), showing that while there are similarities, the two are far from the same.

The Looking Glass Gone Wrong?  Backwards Chinese Characters on this Chanel Dress

The Looking Glass Gone Wrong? Backwards Chinese Characters on this Chanel Dress

Fortunately, the Saturday I attended the exhibit, I was accompanied by an American fashion designer friend who could not get enough of this exhibit.  As she explained, what is exciting about “China” is that for Western designers, they can “add another layer of creativity because they do not carry the cultural context” that Chinese designers would have.  In many ways, these Western designers are more free to create new concepts.  Silk, manchu robes, the qipao, the mao suit, often shorthand for China in the Western fashion, can be taken to another level by Western designers while maintaining something “Chinese-y” (of course the French have a word for this: chinoiserie).

But at what point does homage become stereotype and in today’s globalized world, does that stereotype become a harmful public view? Those questions are asked, but left largely unanswered, in the portion of the exhibit featuring Anna May Wong, an American actress of Chinese descent who served as a muse to many fashion designer.  Wong repeatedly received ecstatic reviews of her performances, but in America, she was constantly typed-cast to play one of two roles: the Lotus Woman or the Dragon Lady.  The clothes in this gallery – inspired by many of Wong’s movie outfits – are juxtaposed with pictures of Wong in many of her stereotyped roles.  At what point do Western apply their interpretations of China to more than just clothes, but also to people?  These questions are raised in another gallery on the floor, the one dedicated to Yves Saint Laurent’s 1977 campaign “Opium.”  Would such marketing fly today?

Anna May Wong and a dress inspired by her

Anna May Wong and a dress inspired by her

On one level, China Through the Looking Glass is sublime and should not be missed – beautiful, Chinese-inspired fashions are artistically laid out (by Hong Kong film director Wong Kar-wai no less) throughout the show, surrounded at times by traditional Chinese artifacts.  The fantasy-feel permeates the show, giving an otherworldly excitement to many of the outfits.  But Looking Glass is more than just a pretty show – it is a show that challenges and questions just how far that looking glass should go.  At what point should our short hands for China stop?

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Rating: ★★★★½
China Through the Looking Glass
New York’s Metropolitan Museum of Art
On Display until August 16, 2015

Wang Nan’s Tian’anmen 26 Years Later

An early photo of Wang Nan, late 1980s

Wang Nan (pronounced Wong Nan) is a 45 year old Beijinger.  Born in 1970, he has seen his city radically change under China’s economic miracle.  In fact, as a photojournalist, he has documented China’s unfathomable rise and has been fortunate enough to partake in it.  Wang Nan and his wife live more than comfortably in their renovated, Western-style apartment, where his photos from around the world line the walls.  He knows he has been lucky, and he will tell you that immediately when you meet him; even with his world travels, he is still a fairly humble man.  His 11-year-old daughter worships him even when he sings off key on their Sunday morning car rides to visit his mother.  His 78-year-old mother, like all mothers, criticizes him as soon as he arrives – his hair is too long, he’s too skinny, he spoils his daughter – her granddaughter – too much.  But like all mothers, she is proud of her son.  And Sunday is her favorite day of the week.

But Wang Nan is not 45 years old.  He has not shared in China’s economic miracle.  He does not have a daughter.  And he never sees his mother.   For Wang Nan never made it past the age of 19.   Instead, in the early morning hours of June 4, 1989, on the corner of Nancheng Street and Chang’an Boulevard – the Boulevard of Eternal Peace – a People’s Liberation Army’s bullet ripped through this high school student’s head.

As Louisa Lim recounts in her powerful book The People’s Republic of Amnesia, Wang Nan’s heart was still faintly

June 4, 1989, the aftermath of the Tian’anmen Crackdown

beating when doctors found him unconscious, bleeding from the head.  They wanted to take him to the hospital, but the soldiers forbade it.  Frantically, the doctors used their last bandage to cover his wound and stayed with him until he died two hours later.  With the sun rising on that June 4 morning 26 years ago and desperate to hide the bodies, the soldiers dug a shallow grave in the lawn of the nearby school and dumped Wang Nan’s body  there along with two other civilians.  There it would lie until a few days later, when the stench was overwhelming  and the dirt was beginning to wash away, the health department came to collect the bodies.

Wang Nan’s mother, Zhang Xianling (pronounced Zhang See-ann Ling), one of the founders of the Tian’anmen Mothers, has never been allowed to visit the spot where her son took his last breath.  Every June 4, she is held under house arrest, with police standing guard at her apartment door, refusing to let her leave or for anyone else to come in.  In a symbol of tormented anguish, she will communicate with the outside world on the anniversary of her son’s death by holding a photo of him out of her apartment window.

Zhang Xianling with a picture of her son, Wang Nan, killed on June 4, 1989

Twenty-six years later, as Lim poignantly recounts in her book, it is this impediment to remembrance and the Chinese Communist Party’s (“CCP”) complete control of the history surrounding June 4th that is perhaps the greatest tragedy of all.  And as Lim points out, it is not just the parents who lost children that are not permitted to remember.  Bao Tong (pronounced Bow (rhymes with pow) Tongue), director of China’s Office of Political Reform in 1989 and right-hand man to his mentor Zhao Ziyang, believed that Deng’s economic reform must be coupled with political reform, otherwise corruption would prevail.  After the Tian’anmen crackdown, it was those thoughts that were blamed for the student protests and resulted in a seven year prison sentence for Bao.  In 2005, when Zhao Ziyang passed away, the police, which constantly stand guard at his apartment, refused to let Bao attend the funeral.  When his elderly wife attempted to go, the police pushed her to the ground, causing her to break a bone.

It is this recounting of the people’s history and the ghosts that still haunt them, that makes The People’s Republic of Amnesia one of the most important and moving books about the Tian’anmen crackdown.  Lim also does an excellent and unbiased job of describing the precise events that lead up to the crackdown making the book a must read for anyone who wants to understand China’s history and the current leadership’s obsession with “social stability” and complete control.

But Lim not only tells the stories of those who witnessed the crackdown, but also those for whom June 4, 1989 has no significance, namely the babies born after 1990.  In one study that Lim conducted, only 15 out of 100 Chinese college students were able to identify the infamous Tank Man photo, a photo that epitomizes the Tian’anmen crackdown and that is perhaps one of the world’s greatest symbols of courage.  She follows a college student who goes to Hong Kong to try to understand Tian’anmen, but when he returns to China, he just seems confused and deflated.  And then there is the Patriot, a Chinese car salesman who goes to Beijing to participate in the government-sponsored protests against the Japanese.  Their failure and inability to know about the Tian’anmen crackdown demonstrates the true effectiveness of the CCP’s re-writing of the Chinese people’s history.

Or does it?  Yes, there is a generation of Chinese who have not heard of the Tian’anmen massacre.  And then there are others who choose not to care.  But to assume that the CCP can so easily erase this dark moment in China’s history is to deny the Chinese people their conscience.  There is still a generation of Chinese – those born in the late 1960s and early 1970s – who know about Tian’anmen because they were alive when it happened.  When this generation comes to power and can change the history, will they?  Yes they might be busy making money now, but they have yet to ascend to leadership roles that would enable them to disclose the truth and recognize the bravery of those who died on June 4, 1989.

Tens of thousands march in Hong Kong last year to commemorate the 25th Anniversary of the Tian’anmen Massacre

There are the 11 Chinese college students, currently studying in various universities in the United States, the United Kingdom and Australia, who wrote an open letter to the Chinese people to communicate what happened on June 4, 1989.  The government-controlled Global Times responded with an op-ed condemning these students.  Like the students of 1989, these students have chosen to jeopardize their futures in China in an attempt to get the CCP to acknowledge June 4.

And then there are those – like the doctors who tried to help Wang Nan as he laid dying or the medical intern who, knowing the danger, gave Zhang Xianling her son’s last effects, or the individual who took out an ad in 2007 in a Chengdu newspaper stating “Paying tribute to the strong(-willed) mothers of June 4 victims” – who, when confronted with the choice, will do what is morally right, not what is politically expedient.

For these people, the world must continue to remember June 4, 1989, so that when the Chinese people themselves can commemorate this anniversary on their own terms, the memory will still be there.

Rating: ★★★★★

The People’s Republic of Amnesia: Tiananmen Revisited
By Louisa Lim
(Oxford University Press, 2014)
211 pages

 

Where Have All the Flowers Gone? Still Time to Respond to China’s Draft Foreign NGO Law

Less than a week is left for the public, including foreign entities, to submit comments on China’s draft Foreign NGO Management Law, a law that will completely alter the ability of foreign NGOs to work in China.  But it will be China’s own grassroots NGOs that will feel the blow of this law the most.  Many of China’s grassroots NGOs, in particular those that assist society’s most vulnerable, receive funding as well as capacity-building support, from these foreign NGOs.   (To read more about various provisions of the law and how exactly it will work, please click here).

Aside from human rights groups, little has been said about the law from the foreign entities that will be covered by it.  As Prof. Jia Xijin, an expert on NGO management in China, has made clear, the current draft law covers almost every non-profit that wants to do anything in China.  A non-profit that wants to set up an office in China will be covered.  But even more than that, any non-profit that just wants to do an event in China or an exchange, that behavior will also be covered even if the organization or its event is not particularly China-focused.  A dance troupe that wants to perform in China, covered.  A museum that wants to do an exchange in China, covered.  Doctors Without Borders responding to an emergency in China, covered.  Universities in particular, with their myriad educational, scientific and other exchanges with Chinese counterparts, will likely be the first victims of the law if it is passed as it is currently written.

Fortunately, New York University (“NYU”) has taken the lead in organizing a group U.S. universities to respond to the current draft law.  For universities interested in participating in that effort, the university’s general counsel’s office should email Danny Magida. [Email address removed since the comment period is over]

Other fields – the arts, bar associations, business associations, medical non-profits – should be taking a page from academia’s playbook and  submit joint comments.  If this law is passed as it is currently drafted, it will cover these fields as well and, because there is a limited number of Chinese partners that will be willing to work with a foreign NGO, could squash the ability of many of these non-profits to continue their work and exchanges with China.  That would ultimately hurt the Chinese people.  And the American people.  Average American’s understanding of China sometimes come from these changes, creating feelings which have largely been positive to U.S.-China relations.

Even businesses and corporate lawyers should be paying attention to this draft Foreign NGO Management Law.  Foreign businesses and corporate law firms are the few entities not covered by the current draft.  But foreign corporations doing business in China should be frightened by this law and its sister – the draft National Security Law.  Both are extremely vague – almost definitional-less – and overly-broad in the entities and conduct covered.  Both show the current power of the security apparatus in crafting China’s laws.  This type of legal drafting might currently be limited to civil society-like laws,  but it may reflect a larger mindset – that law should serve the Chinese Communist Party – that will inevitably be felt in the business world as well, if it hasn’t already.

Comments are open until June 4, 2015 and can be filed through the China’s National People’s Congress’ website here.

For instructions on how to comment, click here to this helpful cheat sheet.

To read China Law & Policy’s in-depth three-part series on the Foreign NGO Management Law, click here for Part 1; click here for Part 2; click here for Part 3.

China Law & Policy is happy to post entities comments to our website.  Please feel free to email info@chinalawandpolicy.com and we will post your comment on the draft Foreign NGO Management Law.

China’s Draft Foreign NGO Law’s Impact on a New World Order

It’s not only the South China Sea that is witnessing China’s differing interpretation of international law and its commitments under various treaties.  With its draft Foreign NGO Management Law, China is also turning up its nose to various international human rights treaties and bodies.  But while the United States sends surveillance planes to bait the Chinese into a skirmish over islands that are not clearly China’s and not clearly the Philippines or Vietnam’s, it remains noticeably silent on the draft Foreign NGO Management Law. (For an interesting take on how to solve the South China Seas issue without resorting to a U.S.-China conflict, see Prof. Jerome Cohen’s analysis here).

As Human Rights in China (HRIC) pointed out in a recent analysis, ignoring the draft Foreign NGO Law’s impact on China’s international human rights commitments comes at a dangerous cost.  China is a sitting member of the U.N.’s Human Rights Council, a Council that less than a year ago issued a resolution calling on its members to create an environment where civil society can flourish and admonishing those state’s that passed laws similar to what China has proposed in the current legislation.  China’s draft law will do precisely the opposite of creating a flourishing domestic NGO sphere; it will create a vacuum in funding and in knowledge for China’s smaller domestic NGOs that do important work benefiting some of China’s most vulnerable – those left behind by the country’s economic development.  The Chinese government has yet to state whether it intends to fill that void with money from its own coffers.  But probably not.

In its analysis, HRIC goes on to highlight China’s other violations of various human rights treaties.  But its most important impact is noting that these transgressions cannot be ignored.  China is not some poor player that struts and frets its hour upon the stage and then is heard no more.  It is the world’s second largest economy with influential positions in the United Nations.  What it does, and how it interprets its human rights commitments, will inevitably impact the rest of the world.  Countries that might not have clamped down on their own civil society for fear of international reprisals, now have cover to do so.  With the world’s silence, it becomes all the more apparent that international human rights treaties play second fiddle – if even that – to military interests over a bunch of rocks that might or might not contain large oil and natural gas reserves.

To read HRIC’s analysis – which is a must read – pleas click here.

One Love: How Foreign NGOs & Governments Should Respond to China’s Draft Foreign NGO Law

In Part 1 of this three-part series, we analyzed how the draft law will restrict foreign NGOs in China,  In Part 2, we examined how the spirit of the draft law is already being felt.  For Part 1, click here; for Part 2, click here

u2More than a week has passed since the Chinese government published its draft Foreign NGO Management Law.  But yet the world largely remains silent – no word publicly from the foreign NGO community in China, the foreign universities that do work in the Mainland or the foreign governments who often fund NGOs working there.  But in light of the draft law’s potentially disastrous effects, is silence really a good strategy?

 

 

We’re One, But We’re Not the Same?  Which Foreign NGOs Will Be Covered by the Draft Law

The draft Foreign NGO Management Law is anything but an example of clarity.  But there are two things we know for sure from the current version: foreign NGOs that have an office in China are covered and foreign NGOs without offices in China that seek to conduct activities there are also covered.  (Art. 6).  We also know that the ultimate authority over all foreign NGOs, whether setting up an office in China or merely conducting activities there, is the Public Security Bureau (PSB) (Arts. 7, 12, 20 & 47).

What is the future of U.S. universities in China?

What is the future of U.S. universities in China?

As China Law Translate notes in its Cheat Sheet for Understanding the Foreign NGO Law, what is a foreign NGO is defined expansively as any “not-for-profit, non-governmental social organization.”  (Art. 2).  Such a broad definition can “include universities, international professional associations and interest groups, artistic groups and athletic associations” in addition to what we view as traditional NGOs like the Red Cross.

Similarly, the term “activity” is left undefined, allowing it to encompass anything.  However, even those foreign NGOs without an office in China will be required to establish a relationship with a Chinese partner in order to obtain a temporary activity permit to perform any work in China.  (Arts. 18-20).  The entire process can take 60 days or more, depending how easy it is to establish a relationship with a Chinese partner.  (Art. 20 & 22).  Will Doctors Without Borders have to apply for a temporary activity permit before responding to a medical emergency in China?  Under the current, vague draft, yes.

Universities are also covered under the current draft law.  It is that fact that has alarmed many Chinese scholars who realize that academic exchanges will be negatively impacted by the current, vague draft.

Ultimately, under the proposed draft Foreign NGO Management Law these terms will all be defined by the PSB.  And changed as the PSB sees politically expedient.

Well We Hurt Each Other Then We Do it Again?  Universities and Foreign NGOs Need to Stand Together

divide_conquerAs Thomas Carothers and Saskia Brechenmacher highlight in their report Closing Space: Democracy and Human Rights Support Under Fire, governments seeking to limit foreign NGOs are “skillful at dividing and conquering the international aid community.” Is the Chinese government hoping that some foreign aid organizations will not oppose the draft law, eager to curry favor so that they can continue their work in China?

But with the amorphous definition of a foreign NGO under the draft law, that is a dangerous strategy for any foreign NGO with either offices in China or that just conducts activities there.  Almost all NGOs are covered under the current definition and that is why it is important that the foreign NGO community, including universities, stand as one in commenting and opposing the current draft.

Universities and major non-profits have an even greater responsibility to publicly comment on the proposed draft law.  In the current environment in China, not all foreign NGOs are equal.  The Rights Practice, which just had one of its staff members deported from China, likely does not have the same credibility before the current Chinese regime as the Gates Foundation, NRDC,  or Save the Children, which in January hosted President Xi Jinping at one of its spaces in Yunnan.  These are organizations that have long supported Chinese civil society actors  in benefiting the Chinese people.  It is important that these major NGOs continue to support civil society in its entirety, not just those sectors that the PSB presently approves.  Further, these major NGO’s do not know when their own work will imperil them with the PSB and thus, could find themselves subject to the harsh, vague provisions of the current draft Foreign NGO Management Law.  Five years ago, who would have thought that a group of individuals with hepatitis seeking to end discrimination would be considered a threat.  But that is where Yirenping finds itself today.

U.S. and European universities have the best footing to comment on the draft Foreign NGO Management Law. save the children These universities likely have thousands of academic exchanges – covering law, science, engineering, medicine – exchanges where the Chinese university likely derives tremendous benefit.  Even with the growing police state, the Chinese government probably does not want to risk losing even some of these beneficial relationships.

It is imperative that these major foreign NGOs and universities stand with those foreign NGOs that are the current target of the law and openly comment on the draft law.  Is the Gates Foundation really going to be kicked out of China?  Is UC Berkeley’s Engineering School?

You Give Me Nothing Now It’s All I Got: Where is the White House on All of This?

U.S. President Barack Obama (R) speaks as Brunei's Sultan and Prime Minister Hassanal Bolkiah (L) listens during the Trans-Pacific Partnership Leaders meeting at the Hale Koa Hotel during the APEC Summit in Honolulu, Hawaii, November 12, 2011. REUTERS/Larry Downing (UNITED STATES - Tags: POLITICS BUSINESS) - RTR2TXQO

REUTERS/Larry Downing

Last Friday, U.S. President Barack Obama recognized that if the we don’t write the rules, China will.  Unfortunately, for the non-profit world, Obama limited that rule-writing to trade issues and support for his Trans-Pacific Partnership.

It is time that the White House recognize that with China, there are more rules out there than those that directly govern trade.  The Obama Administration has allowed too many non-trade issues – U.S. journalist visas, now foreign NGOs – to receive scant attention as a U.S.-China policy matter.  With the U.S. abandoning these issues, China is writing the rules in these important areas, and these will be rules that other countries will copy.

But the Administration is not without recourse.  It too can submit comments on the draft law and should. When U.S. technology companies appeared to be negatively impacted by China’s draft Counter-Terrorism Law published late last year, Obama made his displeasure publicly known.  There is no reason to why he cannot do the same with the draft Foreign NGO Management Law. And comments from the Administration can no longer be relegated to a State Department spokesperson.  If there is anything to be learned from the handling of the U.S. journalist visa issue with the Chinese government, a State Department spokesperson is not going to cut it when dealing with the world’s second largest economy.  It wasn’t until Vice President Joseph Biden visited China in December 2013 and publicly raised the U.S. journalist visa hold-up, did China start taking the issue seriously.  Soon after, U.S. journalists’ visas were renewed.

China's pollution - coming to U.S. shores

China’s pollution – coming to U.S. shores

Although the Obama Administration should oppose the draft Foreign NGO Management Law on the grounds that its radical clampdown on civil society is anathema to the interest of the Chinese people, opposition can also be tied to trade.  Chinese domestic civil society groups often deal with the flipside of  free trade – environmental degradation, workplace justice, product safety.  And these are issues that are increasingly coming to our shores: air pollution from China now reaches California; unsafe products made in China are sold in the United States.  Chinese NGOs seek to enforce environmental regulation and product safety laws.  Although their goal is to protect the Chinese people from the harms of unregulated capitalism, a side benefit of Chinese NGOs’ success accrues to the American people.  California becomes cleaner and U.S. citizens fear Chinese goods less.  But if the draft Foreign NGO Management Law is passed in its current form, an important lifeline of Chinese civil society – the foreign NGO – will potentially be cut off. To ensure a balanced trade relationship with China, the Obama Administration must comment on the current draft law.  One opportunity is right around the corner: the annual U.S.-China Strategic and Economic Dialogue to be held this June in Washington, D.C..  The draft Foreign NGO Management Law, and the important role civil society plays in a free trade world should be on the agenda.

Finally, the increasingly unbridled power of the public security apparatus, evident in the draft Foreign NGO Management Law as well as the draft National Security Law, which was published only days after the NGO law, should frighten any entity that deals with China – be it a not-for-profit, a business or the U.S. government.  To ignore that development and to believe that the supremacy of the PSB is somehow limited to civil society issues is to do so at the peril of all of the United States’ interests in Asia, including business and military interests.

commentLike foreign NGOs and universities, the United States government has the opportunity to comment on the draft Foreign NGO Management Law and should do so.  Ironically, the comment period closes on June 4, 2015, the anniversary of the 1989 Tiananmen massacre.

Would you like to make your comment public on China Law & Policy?  Please email us at info@chinalawandpolicy.com with your agency’s comment and we will publish it (assuming it is related to the topic and is family-friendly).
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This concludes China Law & Policy’s three-part series on China’s draft Foreign NGO Management Law.  To read Part I where we analyzed how the draft law will restrict foreign NGOs in China, click here.  To read Part 2 where we examined how the spirit of the draft law is already being felt, click here. 

The Future is Already Present? How the Draft Foreign NGO Management Law Could Be Applied

For Part 1, which analyzes precisely how the law will restrict foreign NGOs in China, please click here

The Five Feminists - Clockwise from top left: Zheng Churan, Li Tingting, Wang Man, Wu Rongrong, and Wei Tingting

The Five Feminists – Clockwise from top left: Zheng Churan, Li Tingting, Wang Man, Wu Rongrong, and Wei Tingting

For anyone who still doubts that the draft Foreign NGO Management Law is about the Public Security’s Bureau’s ability to control foreign NGOs and their domestic partners, recent events – namely the detention of five feminist activists, the indictment of the head of the Chinese think tank, the Transition Institute, and the expulsion of foreign aid workers – should make clear that the draft law is primarily a security document.

The recent month-long detention of five female activists for planning a small, anti-sexual harassment demonstration was less about feminism than it was about the spirit of the draft Foreign NGO Management Law.  According to a person with knowledge of the March 2015 interrogations of the five women, the police’s questions centered on the five women’s work with various foreign NGOs as well as their work with Yirenping, a successful Chinese public health NGO that often cooperates with foreign NGOs.  The subject of the women’s planned demonstrations were a secondary issue for the police.

Similarly, the recent Recommendation for Prosecution of Guo Yushan and He Zhengjun, founders of the liberal think tank, the Transition Institute of Social and Economic Research, highlighted the Institute’s overseas funding and named various foreign NGOs (Heinrich Böll Stiftung (Germany), the Friedrich Naumann Stiftung (Germany), the Center for International Private Enterprise (U.S.), and Probe International (Canada)) as supporting the Institute’s “illegal business activities.”

The draft Foreign NGO Management Law, if passed in its current form, will make harassment of Chinese NGOs even easier than what we see now.  No longer will the police need to twist the criminal law to suit its objectives or will it be stymied by an earnest prosecutor’s office. Article 38 of the draft Foreign NGO Management Law forbids Chinese individuals from receiving foreign funds from an NGO without an office in China, much like the Transition Institute allegedly did.  Further, under Article 58(4), cooperating with an unregistered and unapproved foreign NGOs could lead to administrative detention of five days and a fine of 50,000 RMB (approximately $8,050).

Administrative detention is a form of punishment in China instituted at the behest of the local public security bureauadmin dete with no judicial oversight.[1]  It has long been criticized for violation of the arbitrary detention prohibition of the International Covenant on Civil and Political Rights (ICCPR) and, with little way to challenge it, is ripe for abuse including torture.  For those considered “personnel” of the foreign NGO, administrative detention could up to 10 days (Article 57) or 15 days (Article 59). With these expansive provisions, the public security bureaus will have a new tool to harass grassroots NGOs the police believe are “troublesome,” like it currently has deemed Yirenping.

Foreigners are not exempt from the draft law.  The administrative penalties make little distinction between foreigners and Chinese citizens in terms of detention and fines.  In addition, Article 62 gives the public security apparatus complete authority to deport a foreigner it deems in violation of the Foreign NGO Management Law.  This provision should not come as a surprise given the recent expulsion of two foreign NGO workers – Tim Millar of the Rights Practice and Jérémie Béja of China Development Brief – on visa technicalities.  Given the vagueness of the draft law, it will be very easy for the PSB to point to a provision of the Foreign NGO Management Law as a basis for deportation.

P1000689These provisions, which give expansive, unchecked powers to the PSB, will have a chilling effect on both foreign and domestic NGOs if they are allowed to remain in the final law.  Additionally, the inclusion of administrative detention puts China that much further from being able to ratify the ICCPR and be in-line with international standards.  But this draft has yet to become law and if there is a silver lining in all of this, it is the fact that the National People’s Congress (NPC) has opened the draft to comment, even comments from the object of the law itself: foreign NGOs.

To find out what foreign NGOs and foreign governments should be doing in light of the draft law, please click here to read Part 3. 

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[1] As China Law Translate notes in its informative Cheat Sheet for Understanding the Foreign NGO Management Law, “[t]here is a mechanism for court review and compensation for those wrongfully given administrative detention, but the remedy often follows punishment if at all.”

 

A Slow Death? China’s Draft Foreign NGO Management Law

What does the future hold for Chinese civil society?
What does the future hold for Chinese civil society?

Last Monday, the Chinese government finally published the second draft of the Foreign NGO Management Law, a law that could completely alter the way foreign NGOs operate in China.  With the proposed layers of government control and final oversight by the China’s Public Security Bureaus (“PSB”), NGO work will become extremely difficult if the law is enacted in its current form.  While foreign NGOs will feel the initial pinch, the true victims will be the Chinese people.

Currently in China, Chinese NGOs – grassroots groups that seek to alleviate poverty, eliminate discrimination and conduct other activities that benefit the average citizen – are largely funded by foreign NGOs, especially those groups whose issue is considered “too political.”  And even where foreign NGOs do not offer funding, they provide essential training, informal advice and moral support that helps grow China’s nascent civil society.  Unfortunately though, the current draft Foreign NGO Management Law will result in fewer foreign NGOs able to work in China and as a result, will set the Chinese people back in their ability to vindicate their own rights.

Why would the Chinese government seek to squash civil society at this juncture?  Many of the government’s own social reform agenda items – ending corruption, ending re-education through labor, reforming the hukou system – have come from these civil society groups. So why now would the Chinese government look to pass a law that could severely limit the growth of civil society?

Make No Mistake, This Law is Not About Greater Transparency

Foreign NGOs have largely remained unregulated in China and there is something to be said about a law

Foreign NGO Managment Law

Foreign NGO Management Law – a show of force by China’s PSB (Photo by TPG/Getty Images)

that adds greater transparency to the sector.  For groups that are lobbying government officials or seeking to change the law, knowing the source of funding – even if the funder does not meddle in the organizations daily affairs –  is something we deem important to know.  The Chinese government is no exception nor should it be.  Only months ago were Americans shocked to learn that foreign governments donate money to many U.S. think tanks, with the implication being that this source of funding impacts the organization’s research direction.  It is why many Americans despise the Citizens United decision – it hides who is donating to a politician, with the inference being that the money sets the politician’s agenda.

But transparency is not what this law is about.  If it was, foreign NGOs could easily continue to be regulated by the Ministry of Civil Affairs.  But the Ministry of Civil Affairs is nowhere to be found in the draft law itself.  Instead, it has largely been replaced by China’s public security apparatus.  It is the PSB that has ultimate say if the foreign NGO can establish a representative office or conduct temporary activities in China (see Art. 47).  The PSB can, on its own volition, conduct on-site inspections of the China office, question individuals involved with the “matter being investigated,” copy or “seal” documents and when the PSB determines necessary, “seal” the venue related to the “matters being investigated” (see Art. 49).  The law is silent on what would give the PSB cause to disrupt the work of a foreign NGO, allowing for potential harassment.

Increasing Strength of the Domestic Security Apparatus Within the Chinese Government

The role of the security apparatus should not come as a surprise.  Since April 2013, with the drafting of Document No. 9, an internal Chinese Communist Party (CCP) communiqué highlighting what the CCP leadership perceived at the greatest security threats to its rule, civil society has been one of “seven perils” to the CCP’s power.  In November 2013, Xi Jinping, China’s new president, announced the formation of a National Security Commission, answering directly to him and that would  handle both foreign and domestic security threats.  In April 2014, the National Security Commission held its first meeting.  A  “penetrating review of foreign NGOs” was on the agenda.  In December 2014, Yang Huanning, the Vice Minister of Public Security, introduced the initial draft Foreign NGO law to the Standing Committee of the National People’s Congress.  Although circulated among Chinese who would be effected, the first draft was never officially circulated to the foreign NGOs who would be impacted.

Public security’s larger role in society is likely its way to justify its ever ballooning budget.  In 2013, spending on domestic security outstripped the government’s spending on the People’s Liberation Army.  Since that milestone and the attention that fact received in the foreign press, the Chinese government no longer publishes the full domestic security figure.  But it likely still continues to rival the amount spent on foreign security.  The Ministry of Public Security, and now the National Security Commission, must find ways to justify that spending, and arguably part of that justification is the threat of “Western agents” acting through foreign NGOs.  The Foreign NGO Management Law embodies that paranoia.

Will Foreign NGOs Even Have the Resources to Follow the New Law?

The law itself does not shut down foreign NGOs in China or prevent foreign NGOs from hosting events in China.  Instead, through an onerous, supervisory structure, it makes getting anything done in China time-consuming and expensive.  Survival of the fittest will dictate which NGOs go and which stay.

Under the draft law, foreign NGOs that want to establish a representative office in China must first have the consent

Will this cooperation be allowed to continue?

Will this cooperation be allowed to continue?

of a Professional Supervisory Unit (PSU) (see Art. 11), presumably a government agency or government-approved organization in the foreign NGO’s field.  A legal-oriented foreign NGO would seek to establish a relationship with the Ministry of Justice as its PSU.  Only after it receives this consent can the foreign NGO apply for approval with the PSB (see Art. 12(6)).

But here is the rub, how many foreign NGOs can one government organization sponsor?  Would the Ministry of Justice establish a relationship with every legal-oriented foreign NGO seeking to establish an office or would it pick one, two, or maybe a handful?  It’s not their business to sponsor foreign NGOs and presumably, these government agencies have limited capacity to do so.  Even if a foreign NGO can partner with a quasi-government organization, there are still not enough of these to cover the number of foreign NGOs with offices in China.  By one estimate, there are close to 1,000 foreign NGOs in China.  As a result, some will inevitably be forced to leave China because of their failure to establish a relationship with a Chinese PSU.

But the relationship with the PSU does not end with registration.  Every year, the foreign NGO will have to submit two documents: (1) an activity plan that delineates the implementation details for the following year’s projects (see Art. 24) and (2) an annual work report which must include financial accounting and audit reports (see Art. 37).   For smaller foreign NGOs with limited resources, hiring someone to handle this paper work might not be the best use of its funding.  Even if a foreign NGO can establish a relationship with a Chinese PSU, at some point it will become debatable if it is even worth it economically.

And if that is enough to discourage a foreign NGO from establishing a representative office, the procedures are required to be repeated every five years. (see Art. 15).

Even Academic Exchanges are Not Exempt from This Law

Harvard University President Drew Faust Meets China's President Xi Jinping on a recent trip to China

Harvard University President Drew Faust Meets China’s President Xi Jinping on a recent trip to China

Those foreign NGOs that think working from abroad will be less onerous will have a rude awakening.  Under the draft law, they must also establish a relationship with a PSU before applying for a “temporary activity permit” from the public security bureau. (see Art. 20(3)).  Again, it will be interesting to see how many eligible PSUs will establish relationships with foreign NGOs.

As the law stands now, foreign universities are not exempt from the draft law.  What foreign NGO is covered by the law is unclear and the vagueness means that anything that is a not-for-profit abroad is covered by the law.  Even the state-run Global Times highlighted the negative impact the first draft of the law could have on academic exchanges.  It appears those issues remain in the second draft as well.

Where Will All The Funding Go?

Any argument that the draft Foreign NGO Management Law will lead to necessary transparency is belied by the rigorous regulations that will make it impossible for many foreign NGOs to legally do work in China.  For many that will mean a decision to leave China.  But, as Thomas Carothers and  Saskia Breechenmacher highlighted in their prescient report, Closing Space: Democracy and Human Rights Support Under Fire, some organizations committed to staying in a country with increasing harsh laws against foreign NGO funding, might implement a policy of “distancing.”  Distancing is essentially the opposite of transparency – trying to hide the source of funding through various offshore means.

But this avenue, with its greater risks to the foreign NGO and in particular to its partners in China, will be used by very few.  The ultimate result of the draft Foreign NGO Management Law is that a large number of grass-roots Chinese NGOs that are doing essential work in China will close.

To see how the spirit of the draft Foreign NGO Law is already being implemented,  for Part 2 of this three-part series, please click here

It’s the Police? How to Make Sense of Judicial Reform & the Civil Society Crackdown

By , April 29, 2015

P1000689Last week, Young China Watchers asked a question that many who study China’s legal development have been grappling with: how to gel the Chinese government’s call for greater judicial authority, announced at October’s Fourth Plenum, with its current crackdown on anti-corruption and civil society.  China Law & Policy was fortunate to be invited to comment on this important question along with Jeremy Daum, senior research fellow at the Yale China Law Center, founder of China Law Translate, and recent participant in a China Law & Policy interview.

While we both reached the conclusion that these two phenomena – a call for judicial reform and the current crackdown  on civil society – are not mutually exclusive, we came at it from very different directions.

Jeremy Daum: “Far from constraining the Party’s power, these legal reforms are designed to reinforce the legitimacy of Party rule by creating more complete and effective mechanisms for the implementation of Party policy through all levels of government……The leadership’s ongoing concern with stability, which includes not just preventing social unrest, but also maintaining continuity of Party rule, resists the development of such perceived alternative sources of influence in civil society. 

Elizabeth M. Lynch: “[W]hat we are seeing are not necessarily two mutually exclusive ideas.  Instead, it is the reflection of the increased dominance of the public security forces. The Party’s calls for judicial independence – eliminating local government control of the judiciary and seeking to appoint legal professionals to the judiciary – can still occur even as this crackdown is happening since the proposed rule of law reforms do nothing to reign in the public security forces….”

The discussion, which can be read in its entirety here, proved an interesting one and even I don’t know who is right.  Feel free to read for yourself and offer any comments!

Read the Full Text of the Young China Watcher’s Conversation by clicking here.

Do We Still Need to Translate China’s Laws? An Interview With Jeremy Daum

By , April 20, 2015
China Law Translate's founder Jeremy Daum

China Law Translate’s founder Jeremy Daum

In the past ten years, the number of Chinese-speaking foreign scholars of Chinese law has increased dramatically, and the number of Chinese lawyers who speak and read English has increased even more. Inevitably, this raises the question of whether translations of Chinese legal materials are still necessary and likewise for American laws translated into Chinese.?

For Jeremy Daum, the creator of China Law Translate (www.chinalawtranslate.com) and Senior Research Fellow at the Yale China Law Center in Beijing, a community-based translation website, the answer is yes, and more so now than ever. China Law Translate (“CLT”) uses internet resources and a volunteer army of netizens to translate various legal documents – laws, regulations, articles, interpretations and news stories from Chinese into English and vice versa.

Over the last two years the site has become an important resource as foreign interest in Chinese law continues to grow. Cited by the New York Times, the Wall Street Journal, and the United States Congress, China Law Translate is a novel attempt at crowd-sourced collaboration for this kind of translation. To understand its success and impact, China Law & Policy interviewed CLT founder Jeremy Daum to better understand the site and its planned future.

[In the interest of full disclosure, China Law & Policy is a proud participant of China Law Translate’s community translation project.]

************************************************************************************

EL: What caused you to create China Law Translate?

JD: Pure selfishness–I use our translations constantly.

In creating the site, I had three goals. First, to allow experts, students and other interested folks to contribute their time and efforts without making a big commitment. At the same time, I hoped to incorporate technological tools to make translation easier. Finally, I also wanted to create a forum for discussing the accuracy of the translations, so our group could begin to standardize commonly used, but uniquely Chinese legal terms.

Also, while it sounds hokey, I honestly believe that communication leads to increased understanding, and hope that

China Law Translate - making it as easy to translate like pushing a button!

China Law Translate – making it as easy to translate like pushing a button!

the site helps contribute something to foreign legal professionals’ understanding China’s situation and vice versa.

In 2013 when I started the site, there were a number of major new laws and interpretations released, not the least of which was the revised Criminal Procedure Law (CPL) with its 290 articles, the Supreme People’s Court’s accompanying 548-article interpretation, the Supreme People’s Procuratorate’s accompanying 708-article interpretation and the Ministry of Public Security’s 376-article implementation regulations. That’s a lot right there, and even reading through it can take an enormous amount of time.

There are a lot of us translating various documents, but we too often translate the same work, duplicating efforts constantly but rarely sharing the successes in any meaningful way.

EL: In introducing this interview I mentioned that with the increased number of bilingual experts, translation might be less relevant. The positive response to your site indicates that you aren’t alone in valuing translation—so, why is translation still important?

China Law Translate's mascot, Judge Bao, a general in 1000 AD but also a symbol of justice.

China Law Translate’s mascot, Judge Bao, a general in 1000 AD but also a symbol of justice.

JD: It’s a legitimate question, but I suspect that anyone who has ever practiced or studied law in China knows that language can still be a barrier. Translating legal texts requires a big skill set- not just excellent language ability, but also an understanding of both the Chinese and foreign legal systems. Law itself is already a kind of second language, and ensuring accurate communication across national languages and legal systems is not so easy.

The number of foreign nationals and organizations involved in China is still increasing, and they all have a practical need to understand Chinese law. At the same time, Chinese law is becoming more and more sophisticated, and this also makes translation more important. Where a quick summary might once have been enough to get a feel for the law, it is now necessary to actually parse the text and follow through to read its interpretations, local implementing regulations and so on. If China’s ongoing legal reforms are to be taken seriously, you have to understand what they really say.

EL: Your site has been used by the New York Times, the Wall Street Journal, the U.S. Congress. Have you been surprised by the response to your site?

JD: Well, we get fairly steady traffic of readers despite slow service times behind the firewall, but only about 1% of visitors have ever even opened the translation panel to contribute. Still, that the media and various governments find the translations useful means we are making a contribution.

One thing that has surprised me is the percentage of readers who are Chinese speakers coming to read Chinese

If only this guy had come to China Law Translate first!  This tattoo means "Chicken Noodle Soup"

If only this guy had come to China Law Translate first! This tattoo means “Chicken Noodle Soup”

language materials. That is to say, about 20% of the traffic is people in China, with their computer set to Chinese, reading Chinese law in Chinese. Sometimes when you set out to solve one problem you end up meeting another need entirely. My only guess as to what’s going on is that other online versions of Chinese laws just aren’t as searchable as ours are—they are often divided up into several pages and you can’t just search the text easily. We always talk about access to law—well, the site seems to be accidentally helping some Chinese people access their laws.

EL: What have been the most important or most cited translations?

JD: I sometimes say that instead of “China Law Translate” the site should be called “China Law Translated”, because in addition to straight translations, we do also provide explanations, commentaries and a real-time newsfeed. These include blog posts and original articles by me, (and anyone else who wants to submit) and also annotations made through a great comment system called Factlink that lets people make sidebar comments on specific chunks of a law.

So, some our most heavily trafficked pages have been translations of draft laws that other places aren’t likely to bother translating: The draft domestic violence law and the draft counter-terrorism law have both been among the site’s busiest pages. Others have been original pieces like an explanation I wrote about the crime of provocation (“ picking quarrels”) a poorly understood offense that has been used to detain a number of prominent activists. We’ve also had a lot of traffic on important case documents of interest to a wider foreign audience, such as the verdict of Xu Zhiyong.

EL: What’s the benefit of CLT’s translations over more formal and traditional processes, like a law school hiring a translator?

Don't get lost in translation!

Don’t get lost in translation!

JD: I love it when law schools, NGOs, governments etc. hire translators to create reliable bilingual versions of laws and documents to share with everyone. It just doesn’t happen very often. Translation is expensive, and usually still requires expert staff time to review if quality is to be assured, so its takes time on top of the translation fees. We avoid a lot of that by working together.

Also, those few translations that are shared publicly aren’t usually kept in a single location where everyone can find them all. But CLT isn’t just a repository for translations either, it’s truly collaborative. Once something is online, it keeps evolving, getting better through contributors comments and additions.

Finally, there are a few pay services that put out translations of key documents, but the pay wall limits the number of people who can use them, and honestly, I think we match them for quality. More importantly, they tend to cater to a different audience, focusing on documents involving business and transactional law, rather than the public law materials CLT emphasizes.

EL: Just to explain it to those who may not have ever seen the site, how exactly does it work?

JD: The documents on the site are broken into single sentence units of meaning for translation purposes. When you open the translation/editor mode, you can click on any of these translation units to make changes, and after you approve the change, it changes the way everyone coming to the site sees that translation.

Even if you don’t want to make changes, you can also use the translation mode to compare the translation to the original language. In reading through translations, I’ve found that I generally see at least one typo that I want to correct, so I encourage others to do this too.

On the off chance that vandals come through and change all the text of the translations, a record is kept of every change to every block of text, and they can be rolled back without any heartache.

EL: If you start translating a law, do you have to finish it? What’s the time commitment for your volunteers?

Not a big time commitment

Not a big time commitment

JD: There is no minimum or maximum time commitment; it’s an ad-hoc ongoing collaboration. And there is certainly no need to finish a translation in one sitting – many of the translations on the site are works in progress, and any portions that haven’t been translated just get displayed in the original language.

It’s a funny thing, I made the site precisely because nobody has time to translate everything by themself, but lots of colleagues still say they’d love to contribute if they only had the time. My thought is this, if you are looking for a certain part of a law, check our site, see if we have it and if that part of the law has been translated yet. If not, translate it so it’s there for the next person.

If you are really devoted, you could translate a random sentence or two a day, it’s a great way to practice language skills!

EL: What if someone who does a translation wants credit for it? Are you willing to allow that person’s name to appear on the translation?

JD: As long as you log in to the site, any translations you make are attributed to you, and anyone who looks at the translation history of a given translation block will see what you did. Most people seem to want NOT to be detected, and translate anonymously by not logging in.

If someone submits a completed full-text translation, I’m happy to put it up with their name (or logo) clearly indicated and an explanation that they submitted it. I do like to keep the entire site editable, so I would probably also put up a PDF of the document as originally submitted so that nobody would wrongly attribute any subsequent changes to the donor.

For folks who consider themselves active members of our community, we have a system where frequent users earn points for visiting the site and commenting and can earn badges or even t-shirts. Of course, if a regular participant wants to put their CLT participation on their resume or what have you, I’d be happy to vouch for them.

EL: How do you guarantee accuracy?

JD: Oh, hah, I don’t. We do our best, and I’ve corrected a few obvious mistakes more than once, but at least at CLT every reader can correct mistakes they see.

As I mentioned above, the secondary goal of the site, beyond creating translations, is creating a forum for discussing translations. There’s room for disagreement about what terms mean even between native speakers discussing their own language’s legal terminology, and it only gets worse when you start translating.

If something on the site seems wrong or bizarre, bring it up in the comments and see if others have something to contribute. This is a conversation that needs to be happening for the benefit of both Chinese and English speaking users.

EL: China Law Translate has been around for a little over two years. Where do you see it going in the future?

JD: In addition to trying to expand our translator and editor base, I’m trying to encourage other organizations doing translations to let me cross post their content. I know that lots of groups do translations for a meeting or case that they only use once, maybe not realizing the value that these documents have for a wider audience. This is just one more way to make the site more complete and collaborative.

EL: Well, thank you again Jeremy first off for creating such an amazing resource and this interview. In case any of our readers are inspired by this interview, they should go to www.chinalawtranslate.com, right?

JD: Yes! Go to China Law Translate to translate your first sentence today!

To help get you started, here is the intro video that guides you in how to translate on China Law Translate:

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