Comments (0)

By Elizabeth M. Lynch, May 29, 2015

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.

Comments (2)

By Elizabeth M. Lynch, May 26, 2015

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.

Comments (2)

By Elizabeth M. Lynch, May 12, 2015

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. 

More 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?

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

As 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.  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?

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

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.

Like 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).
***************************************************************************
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. 

Comments (4)

By Elizabeth M. Lynch, May 11, 2015

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

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 bureau 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.

These 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. 

**********************************************************************************************************
[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.”

Comments (8)

By Elizabeth M. Lynch, May 10, 2015

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 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?

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

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. 

Comments (0)

By Elizabeth M. Lynch, April 29, 2015

Last 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.

Comments (0)

By Elizabeth M. Lynch, April 14, 2015

Normally it is an embarrassment when you get something wrong, but in this case, I could not be more relieved to be completely mistaken.  Yesterday, I blogged that Wang Man, Wei Tingting, Zheng Churan, Li Tingting and Wu Rongrong would likely be officially arrested.  However, last night, each was released “on guarantee pending further investigation” (取保候审), a concept akin to bail in the United States. 

Human Rights in China goes into detail on the legal requirements of “release on guarantee pending further investigation” and as a result, we won’t go into further detail other than to say, this is not complete freedom.  Basically, for the the next 12 months (CPL Art. 77 limits bail to 12 months), the women are at the whim of the local public security bureaus, allowed to be called in for questioning as the police further investigate the charges.  Under the Criminal Procedure Law (“CPL”), the women’s freedom will be limited.  They must remain in their home city and depending on what the police determine should be the conditions of their bail, they may be prevented from organizing any further demonstrations, activities or working together (see CPL Art. 69(2): may not meet or communicate with designated persons; CPL Art. 69(3): must not engage in designated activities).  Their passports may also be taken away.

But again, although there is a written document that lists the conditions of their “release on guarantee pending further investigation,” no where in the Ministry of Public Security Regulations (“MPS Regulations” or “MPS Regs”) does it state that this document must be physically given to the suspects.  In fact, the MPS Regulations only require that the conditions of bail be read aloud to the suspect (MPS Regs. Art. 79).

However, the fact that there is a release on “bail” is a positive development and many have praised the international outcry for precipitating the women’s release.   Certainly the international and media attention to the detention of these activists on the eve of International Women’s Day likely played a role in influencing some in the government to realize that backlash would only increase if these women were formally arrested. 

But one can’t help but wonder whether this international influence is a double-edged sword in the current NGO environment in China.  Presently, Chinese grassroots NGOs, who operate in a legal netherworld, have been under increasing scrutiny by the Chinese government with a draft Charity Law in the works that could make life more difficult for these organizations.  The government’s goal: to determine how much funding the the domestic NGOs receive from abroad.  It’s this international funding and influence that the Chinese government has begun to increasingly fear and view as a Western attempt to undermine the Chinese Communist Party (see Julia Famularo’s brilliant essay on this in The Diplomat).  And it is not just domestic NGOs that the Chinese government is seeking to restrain.  Allegedly a confidential, draft regulation or law, colloquially called the “Anti-Foreign Agent Law,” is in the works to regulate foreign NGOs working in China. 

International demonstration to Free the Five

Thus, the international uproar, likely also a result of Chinese NGO Yirenping’s effective advocacy campaign for the freedom of their staff and former staff (three of the women are currently or have been affiliated in the past with Yirenping), while being applauded in the West, might be the type of example that will give supporters of a harsh Charity Law and severe Anti-Foreign Agent Act the evidence they need to make sure it passes as is. 

Comments (0)

By Elizabeth M. Lynch, May 9, 2014

For Tang Jitian (pronounced Tang Jee tee-an), a human rights advocate and disbarred criminal defense lawyer, 2013 should have been a banner year.  The new Criminal Procedure law took effect ostensibly providing for greater rights for defendants and their lawyers; the Supreme People’s Court’s new President, Zhou Qiang, highlighted the pressing need for the judiciary to respect criminal defense attorneys; and the Third Plenum of the Party’s Central Committee released its resolution, calling on the Party to “give rein to the important function of lawyers in safeguarding citizens’ and legal persons’ lawful rights and interests.”  To cap it all off, in December, the government abolished the much reviled Re-Education Through Labor (“RETL”), an administrative punishment unsupervised by the court system that often resulted in hard labor sentence of up to three years.

But for Tang Jitian, 2013 and the early months of 2014 have proven to be anything but positive.  Instead, human rights advocates have experienced one of the worst  years since 2008 according to the 2013 Annual Report published by the non-profit Chinese Human Rights Defenders (“CHRD”).  Under the leadership of China’s new president, Xi Jinping (pronounced See Gin ping), there have been more than 220 criminal detentions of human rights defenders, as documented by CHRD’s report, a three-fold increase from the previous year.  The number of detentions that have not gone through the legal process if even greater.

What makes Xi’s crackdown different – and more ominous – than previous ones is its veneer of legality and its attempt to mask the increased levels of violence.

China’s new president – Xi Jinping

Nothing exemplifies that better than what happened to Tang Jitian in China’s Heilongjiang province this past March.

Whac-A-Mole: RETL is Replaced By Other Administrative Detention

As a human rights attorney, Tang has represented some of China’s most vulnerable, in particular adherents of the spiritual movement Falun Gong.  The Chinese government has categorized Falun Gong as a cult not necessarily as a result of any of its practices, but rather as an easy way to target a movement that was able to amass a large number of dedicated followers in a short amount of time.  It was Tang’s zealous advocacy of a Falun Gong practitioner that led to his disbarment in 2010.

On some level, one cannot be a human rights lawyer in China without understanding the particular plight of Falun Gong practitioners.  And that is why Tang ended up outside of a Jiansanjiang (pronounced Gee-en san jee-ang) detention Center where several Falun Gong practitioners were being detained in a “Legal Education Center.”

Re-Education Through Labor Camp before they were formally abolished

While the Chinese government may have eliminated the RETL system, it did not get rid of all forms of administrative punishment.  In its place popped up  drug rehabilitation centers to house many of RETL’s drug addicts and legal education centers to deal with RETL’s Falun Gong practitioners as well as citizen petitioners, people the government has deemed “troublemakers.”  The ability to detain individuals without proper legal procedures has been too powerful of a tool for a government with an obscene infatuation with “social stability” to give it up so easily.   For these detained individuals, it is of little consolation if the prison they find themselves in is called a labor camp or a legal education center.  In the end they are still deprived of their liberty without any legal review or access to lawyers and often with little to no contact with their families.

When the Lawyers Become the Victims

It was this discrepancy that Tang and three other human rights lawyers – Jiang Tianyong, Wang Cheng and Zhang Junjie (the Jiansanjiang Four) – sought to bring attention to by trying to serve as attorneys to the Falun Gong practitioners being held at the Jiansanjiang Legal Education Center.  However, before the Jiansanjiang Four could lodge formal complaints on behalf of their clients, the police raided their hotel room and detained the four attorneys.

Zhang Junjie would be released five days later; Tang Jitian and Jiang Tianyong were held in detention for 15 days.  None ever went

The Jiansanjiang Four – from L to R: Jiang Tianyong, Zhang Junjie, Wang Cheng & Tang Jitian

before a judge but again the law allows for this form of administrative punishment as well.  In March 2006, China’s Public Security Administrative Punishment Law (“Admin Punishment Law”) – a law that gives free rein to the police to detain individuals for up to 15 days – went into effect.  Under the law, the police essentially serve as prosecutor, judge and jury.  Although there is an appeal process, as Joshua Rosenzweig notes, “it’s possible to request that a detention be postponed pending the outcome of such a challenge [appeal], but, again, police have discretion to decide this based on whether they think the individual will continue to be a harm to society. So, basically one has little option but to serve one’s time in jail first and pursue remedies later.”

Each of the Jiansanjiang Four were held under the Admin Punishment Law.  Tang and Jiang were given the maximum punishment of 15 days for “using cult activities to endanger society.”  It was Tang and Jiang’s attempts to represent Falun Gong practitioners – the very reason for their profession and protected by the Lawyers Law – that was punished.

Under the Veneer of Legality, Increase Levels of Violence

Five to 15 days might not seem like a long time, but for someone being tortured, it is an eternity.  While being held by police, each of the Jiansanjiang Four experienced repeated beatings and each needed to go to the hospital upon their release.  This is what makes the Admin Punishment Law dangerous – without any supervision or the ability to appeal the sanction, the police have free rein to do what they want with these “troublesome” human rights advocates.

Tang Jitian receiving diagnosis at the hospital
AP Photo/Alexander F. Yuan

This type of violence against human rights advocates is becoming increasingly common under President Xi Jinping.  While beatings are the most common, denial of services, including food and medical treatment has also become prevalent and at times with dire consequences.  Tang Jitian suffers from spinal tuberculosis.  According to Boxun, while at a Beijing hospital after his detention, Tang was initially informed that surgery was necessary to avoid paralysis.  But a few days later, the head of the hospital visited Tang’s room to inform him that the surgery was not possible at the hospital and suggested that he leave.  Tang’s TB, at least the spinal portion, is going untreated.

For Cao Shunli, another human rights advocate who had been criminally detained since September 2013, it was her medical condition mixed with possible beatings that eventually killed her.  On March 14, 2014, while still in police custody, Cao died of as a result of her tuberculosis.  Her family claims that her TB was left untreated and that she was physically abused in police custody.  To this day, Cao’s body has not be release to her family for proper burial.

But while China conducts one of its worst crackdowns on human rights advocates, it is still able to obtain a seat on the United Nations’ Human Rights Council, a body responsible for enforcing many of the international human rights standards which the Chinese government violates with abandon.  One wonders how many other human rights advocates must die before the world wakes up.

Comments (4)

By Elizabeth M. Lynch, January 21, 2014

Xu Zhiyong in better days – on the cover of Chinese Esquire in 2009

On Wednesday, the Beijing Municipal No. 1 Intermediate People’s Court will hear the trial of rights-defending lawyer Xu Zhiyong (pronounced Sue Zhi-young).  His alleged crime?  Disturbing public order, a charge that the Chinese government has used with abandon since China’s new president Xi Jinping rose to power at the end of 2012

Xu was not always the Chinese government’s Enemy No. 1.   Early in his career, Xu was celebrated for his ground-breaking work.  In 2003, Xu, along with rights-defending attorneys Teng Biao and Yu Jiang, successfully pushed for the abolishment of China’s custody and repatriation system, a form of extrajudicial detention that resulted in abuse and on one occasion the death of a college student.   In 2008, Xu, through his legal assistance organization the Open Constitution Initiative (“OCI” or in Chinese “Gongmeng”) represented parents whose children were poisoned by contaminated powdered milk, keeping the issue in the press and obtaining some form of justice for the parents.  These cases, in addition to investigations into the use China’s “black jails” – extrajudicial, ad hoc and secretive holding cells used to house government-defined trouble makers – brought both domestic and international fame.  In 2008, Xu was featured in China’s Economic Observer and by 2009, he would grace the cover of China’s Esquire magazine.

But Xu’s success also brought the attention of the Chinese government at a time when it was beginning to look less and less favorably upon the rights-defending movement.  In July 2009, Xu was detained on charges of tax evasion.  After being held for almost a month, Xu was freed on bail and his organization was fined a stunning 1.46 million RMB.  Such was the end of OCI.

Fortunately for the Chinese people it was not the end of Xu Zhiyong or his rights-defending work.  Instead, Xu looked to take his ideas and create

Emblem of the New Citizens Movement – calligraphy of Sun Yatsen

a more organized grassroots movement.  Working with other rights-defending lawyers, journalists, activists and average citizens, the movement called on the Chinese people to uphold the rule of law and seek to protect their civil rights.  By May 2012, Xu named this movement “New Citizens Movement” (in Chinese, Xin Gongmin Yundong) and called upon the new citizens to unite and help to establish a rule of law, protect constitutionally-guaranteed rights, end corruption in government and change the role of the Chinese people from subjects to full-functioning citizens.  Xu’s essay describing the movement was quickly removed from the internet.

Although many describe Xu’s approach as moderate, it is still too radical for the Chinese government, especially a Chinese government with a new president eager to solidify his power.  Over the past year, the Chinese government has detained over 100 activists, many of whom are New Citizens.

In July 2013, Xu’s time had come; the police detained him and various other activists and in August 2013, formally arrested him for disturbing public order.   In its December 2013 indictment, the Beijing police charged Xu with organizing and being the ringleader of protests held in Beijing calling on the government to require that senior government officials disclose their financial holdings and assets (see video below of one of the protests).

The fact that the Chinese Communist Party has recently initiated such a pilot program of asset disclosure is irrelevant.  Last Friday, Xu appeared before the Beijing Municipal No. 1 Intermediate Court where he learned that his trial is set for Wednesday, that he will not be permitted to call witnesses, and will not be permitted to cross-examine the prosecution’s witnesses.  As protest, Xu will remain silent during Wednesday’s trial.

There are many things to question about Xu’s impending trial, but one aspect that jumps out as out of the ordinary is the fact that Xu’s trial will not be held in a basic trial court.  Instead, the intermediate court has jurisdiction; many of the other defendants arrested and charged for the same crimes will have their case heard in the Haidian Basic People’s Court.   Why is Xu different?  Why is his case being heard by a higher court?

Beijing’s No. 1 Intermediate Court

According to the China’s amended Criminal Procedure Law (“CPL”), an intermediate court automatically has jurisdiction if the case involves charges of endangering state security or involves terrorist activities, or if the case has a penalty of life imprisonment or death  (see CPL, Article 20).  Here, the charges do not involve state security or terrorism and the penalty is a maximum of five years imprisonment.

However, according to the Supreme People’s Court’s Interpretation on the Implementation of the Amended CPL (“SPC Interpretations”), even when a case does not involve state security, terrorism, a life sentence or the death penalty, the lower court can ask the intermediate court to hear the trial if (1) the case is large or complex, (2) is a novel and difficult case, or (3) is a case that is significant and thus would provide general guidance to other case (see SPC Interpretations, Article 15).

If Article 15 of the SPC Interpretations is the basis of the Intermediate Court’s jurisdiction, then the Intermediate Court must issue a written decision accepting the transfer and submit that decision to the lower court and the prosecutor.  Article 15 does not require that the written decision be provided to defendant or his attorney (see also SPC Interpretations, Article 14: Higher people’s courts deciding to try a first-instance case within the jurisdiction of a lower people’s court, should send down a written decision to change jurisdiction to the court below, and notify the procuratorate at the same level in writing”).

Unfortunately, none of the articles about Xu trial – either in Chinese or English – explain why his case is being heard by the Intermediate Court and not, like the other defendants accused of the same crimes, by the Haidian Basic Court.

But regardless of the reason why the Intermediate Court is hearing Xu’s case, the SPC Interpretations are fairly clear that where a case involves

Xu Zhiyong, awaiting trial in the detention center

multiple defendants and the case is elevated to a higher court for one defendant, then all defendants should be tried by the higher court (see SPC Interpretations, Article 13: “For multiple crimes by a single person, joint crimes or other cases that need to be joined for trial, if one person or crime belongs to the jurisdiction of the higher level court, the higher level court has jurisdiction of the entire case”).

New Citizens activist and rights-defending lawyer Xiao Guozhen speculates that the police and prosecutors sought to separate the trials so that the statements of the other participants can be used against Xu in his trial.  According to Xiao, in a trial with multiple defendants, one co-defendant cannot serve as a witness.  But when the trials are separated, the other defendant’s statements and confessions can be used in the trial against Xu.  But this all supposes that the other accused will speak out against Xu.

Hopefully Wednesday we will know although as Prof. Jerome Cohen points out, the authorities has done all that it can, such as using one of the smallest courtrooms in the courthouse for Xu’s trial to guarantee that the trial is all but closed to the public.  Another violation of the amended CPL.

Comments (5)

By Elizabeth M. Lynch, August 1, 2013

Tom Friedman

“Every so often you read a news article so revealing…[and] say ‘…That story was the warning sign.”” So begins Tom Friedman’s unfortunate return to writing about China.

In Wednesday’s “Revenge of the Mistress,”  Friedman feebly attempts to argue that China has reached a turning point on official corruption and that turning point has been the online blitz of one “jilted mistress” of the deputy director at the State Administration of Archives.  For Friedman, this 26 year old woman, Ji Yingnan, and her online posts and photos of their lavish life together – a life she thought was forever until she found out that the man was married with a kid – are important in exposing the corruption that is prevalent in China.  For Friedman, she is the whistleblower that could change the course of China and potentially of the world. 

But Friedman’s article completely misses the mark and paints a picture of China that doesn’t really exist. 

First, a jilted mistress as a whistleblower?  Really?  Do you really think that the popularity of her blog posts is a result of an never-before-exposed seeping anger against official corruption?  Or is it more perhaps the lurid details of an affair that went wrong?  Are the excesses she exposes really that unknown to the Chinese public?

No.  The lavishness of government officials has been reported on by the domestic Chinese media for at least the past year.  What Ji “exposes” are facts that are already well known.  The Chinese public knows that graft and corruption is very much a part of their leadership’s lives.  China’s new President Xi Jinping has openly called for the end of corruption among government officials, implicitly admitting to the fact that corruption is wide-spread. 

While certain aspects of the leadership’s wealth – such as the wealth amassed by former Premier Wen Jiabao’s family and reported by David Barboza in the N.Y. Times – have been kept a secret, the lavish spending and mistresses of some government officials has been reported.  And Ji’s post  in no way rises to the damning level of Barboza’s well-documented accumulation of wealth through government ties.  Unlike Barboza’s series of articles which were censored in China, Ji’s posts are still on the internet and she is even receiving media attention.  The reason: because she is not a threat to the ruling elite or necessarily their ways.  She is not a whistleblower; she is not a game-changer; she is a woman scorned. 

But the bigger fault of Friedman’s analysis is his complete ignorance of the fact that since May, the Chinese government has waged a crackdown on anti-corruption activists, petitioners and lawyers, detaining more than 30 individuals for their anti-corruption campaigns.  Most of these activists have been freed.  But most recently, the Chinese government has detained  well-known rights lawyer Xu Zhiyong who has called for greater government transparency and accountability of officials and their families’ assets. 

To ignore the work of these activists and the largely illegal crackdown on their activism (Xu was denied access to his lawyers in contravention of the Lawyers Law and the new Criminal Procedure Law) does a disservice to explaining what is really going on in China.  To claim that a “jilted mistress” is a civil society actor misinterprets what civil society is.   Likely Ji doesn’t have a “cause” other than herself.  The detained activists, their cause is to better Chinese society and have the government follow a rule of law.

Friedman naively calls on civil society actors to find allies within the ruling Chinese Communist Party (CCP)  and convince them that cracking down on corruption is in their best interest.  As if these activists – sitting in their detention cells – hadn’t already thought of that.  While the CCP is not a monolith and there are some reformers within the government, it’s still not an open group of people.  It’s not like some reformer in the CCP is going to invite Xu Zhiyong out for a beer summit and get his take on things.  And what’s Xu suppose to do, write a letter about ending corruption?  In China, that’s what gets you detained.

Courtesy of China Human Rights Defenders, chrdnet.com

Finally, Friedman’s article ends by focusing on how corruption in the Chinese government doesn’t just destabilize China, but given our intertwined relationship, the United States as well.  But this is too simplistic of an analysis.  Certainly what happens in China impacts the U.S.  But would ending corruption solve everything?  Would that change the fact that the Chinese government ties its currency to the U.S. dollar?  Would that result in better air quality standards in China?  Largely no. 

What would have a bigger impact would be a rule of law.  Corruption goes unchecked because there isn’t an independent prosecutor to check local government officials.   Air quality in China is horrible because environmental regulations are not enforced and the people have no independent courts in which to bring their case.  Corruption is merely a symptom of the underlying disregard for a rule of law.