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New law in China leaves charities puzzled

HONG KONG (SE): China passed two new regulatory laws this year, one aimed at the operations of charities, both foreign and local, and the other at foreign non-government organisations (NGO), of which there are an estimated 7,000 operating in the country.

While most facets of both laws are not tightly defined or described, two things are abundantly clear; religious and political activity are both banned and the validity of the perception of the state regarding any activity is paramount and safely guarded.

The other facet that is quite clear is that the purpose of both laws is to safeguard the security of the state. 

The oversight of NGOs has become a portfolio of the Ministry for Public Security, which is responsible for all state policing.

Although the two laws are similar, with both requiring sponsoring by a registered local organisation or government body, called a Profession Supervisory Unit, which also becomes responsible for the charity or NGO, the law on NGOs is tighter in some respects; for example, it may not have a membership consisting of Chinese citizens without the express permission of the state council.

Another unclear area is the body that may be appropriate to act as the supervisory unit. However, it is suspected that in the case of an NGO that is involved in education for example, it is most likely to be the Ministry for Education.

The Ministry for Public Security has promised to release a list of designated supervisory units in the future.

But the lack of clarity is proving a headache for people in already existing organisations.

The supervisor of an active charity that had previously not been registered in China, told the Sunday Examiner that his organisation now has a Professional Supervisory Unit and the relationship is working well.

However, he said that the big worry is in the interpretation of the laws, as it is not clear whether his organisation will be classified as a charity or an NGO and this may affect the manner in which fund raising can and cannot be done, as well as under whose name is it carried out.

He added that interpretation is always a grey area, as it is usually whimsical and dependent on local public servants, and the whim can be personal to the official and not necessarily tied to any requirement of law.

“It is difficult to know what to tell our benefactors,” he commented. “As really we do not know whether we can continue or not. I am also having second thoughts about employing anyone.”

While the government acknowledges its security concerns about foreign NGOs, it also claims that the Ministry for Public Security was chosen as the responsible body to administer the law, as it is the most suited to deal with foreigners.

The government concern is clearly revealed and spelled out in the new law, as it specifically prohibits any activity that may harm China’s national interests or societal public interest.

While the scope of this prohibition is not spelled out, an article published by the National Law Review in May suggests that reading it in the context of the Criminal Law does shed light on the issue.

It refers to Article 103, which ties endangering national unity with separatism, which the article suggests is primarily connected with secession.

It also points to Article 107, which includes armed rebellion and subverting state power, and then more specific activities such as arson, destroying public transport or picking quarrels.

The National Law Review says, “While this may seem rather confused, it is not wholly illogical. Throughout the legal code, China has used terms of art to prohibit a wide-ranging and shifting set of activities that, in a given situation, the state perceives as endangering its security.”

It then concludes, “The NGO law continues this tradition,” as what the state perceives as endangering is a moveable feast.

The Charity Law and the Law on the Management of the Activities of Foreign Non-Government Organisations Within China were both passed during the Standing Committee of the National People’s Congress this year, although the one governing foreign NGOs will not come into effect until 1 January 2017.

However, it seems that the government was surprised at the ferocity of the response to the suggested NGO law coming from foreign governments and seems to be doing a re-think on some aspects of its interpretation.

A promised answer to frequently asked questions has yet to appear, as has a clarification of implementing regulations.

But in all probability many of these questions will be left vague, as that allows authorities greater discretion in interpreting and applying the laws, a normal pattern of mainland policing administration.

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