FINDINGS

Nongovernemtal Organizations and the Development of Civil Society

Civil society connotes "associational space between the state and private citizens" (253) where individuals can "participate voluntarily in public or community affairs, with some degree of independence from the Party/state—and they may simply be loose associations of people with a common cause." (254) Since the early 1980s, the number, size, and influence of NGOs in China have increased dramatically, representing "a key step in the evolution of a civil society in China." (255) Although the growth of civil society suggests more official tolerance for some measure of civic participation and autonomy, Chinese government attitudes toward NGOs can change suddenly and become unreasonably harsh. Yet the overall government attitude toward NGOs appears more relaxed than in the past, owing in part to the Chinese government’s recognition that it can no longer meet the vast social and economic needs of a modernizing nation.

According to Chinese government statistics, at the end of 2001, China had 129,000 "social organizations" (shehui tuanti), which were registered with the Ministry of Civil Affairs (MOCA), and 82,000 private nonprofit corporations.(256) Estimates of unregistered NGOs range from 1.4 to 2 million.(257) Other NGOs, unable or unwilling to register as an NGO with MOCA, register instead as forprofit commercial enterprises. NGOs engage in work and activities that span a wide variety of issues such as the environment, consumer protection, poverty alleviation, domestic violence, AIDS advocacy, and trade.(258) In 2002, the government for the first time permitted an international NGO—Lions Club International—to establish chapters in China.

The Chinese government recognizes that NGOs have an important role in filling some of the service gaps left by the transition to a market economy and the resulting decentralization of authority. An example of such recognition can be found in the government's July 2003 regulations on legal aid, which emphasize the importance of NGOs in providing legal services to China’s underprivileged.(259) At the same time, Chinese authorities can react aggressively to perceived threats to central authority.260 Despite the recent dramatic growth in NGOs, three substantial challenges face these organizations in China today: burdensome registration requirements, inadequate funding, and lack of administrative and program capacity.(261)

Observers of civil society in China uniformly point to the onerous regulatory framework governing NGOs as a major impediment to the growth and development of civil society in China.(262) NGOs must register with MOCA and must also renew their registration annually.(263) NGOs must also find a governmental "sponsor" agency or unit that theoretically is involved in similar work before they are permitted to register with MOCA. Some NGOs find this to be an insurmountable hurdle, and as a result register instead as for-profit enterprises with the Bureau of Industry and Commerce (and consequently must pay corporate tax). Other requirements for registering with MOCA include a minimum of 50 members and a minimum capital of RMB 30,000 (about $3,600). Moreover, only one organization of each type may register at each administrative level (e.g., only one bird-watching association would be permitted per township).(264)

Regulatory hurdles have led many NGOs to decide not to register, at least initially. The same regulations have also given MOCA the tools to close noncompliant NGOs. For example, in June 2003, MOCA closed 63 NGOs, including the China Fisherman’s Association, the Golden Lotus Study Group, the Cool and Breezy Painting Society and the Dancing Hall Music Association. These groups either did not apply to re-register when required or failed to submit completed forms to renew their registrations. Government officials also closed down some organizations because individuals had complained that the groups had swindled and deceived them.(265) The annual registration renewal requirement gives MOCA a useful tool of control. For example, MOCA threatened Friends of Nature, the first officially recognized environmental NGO in China, with de-registration if it did not oust Wang Lixiong, one of its founders and its current secretary.266 MOCA deemed Wang "dangerous" because he supported Tenzin Deleg, a Tibetan lama who was sentenced to death for alleged participation in a terrorist conspiracy in Sichuan.(267)

A lack of funds for operational and capital expenses plagues most NGOs. China's tax and donation laws provide little incentive for donations to NGOs, and an identifiable philanthropic community or consciousness has yet to arise in China.(268) Consequently, most NGOs rely on international sources for funding. China Development Brief estimates that China is receiving over $100 million each year in project funding directly from or channeled through over 500 international NGOs, including foundations and faith-based charitable groups.(269) According to the NGO Research Center at Tsinghua University, 80 to 90 percent of funding for Chinese NGOs comes from international sources.

Chinese NGOs also lack the requisite capacity to manage organizations and programs. NGO officials and staff lack experience,training, and knowledge in organizational management, human resources,fundraising, public relations, and methods of accountability and transparency. The American Chamber of Commerce in China (in conjunction with the China Development Brief) recently announced an innovative initiative to address the need for capacity building among Chinese NGOs. The Chamber asks American companies in China to temporarily donate highly qualified Chinese technical and managerial staff as volunteers at Chinese NGOs to advise in areas such as financial management, accounting, personnel management, and spreadsheet analysis.(270)

In addition to the restrictive registration requirements forced on Chinese NGOs, government authorities also limit permissible activities and subject matter. For example, no independent domestic NGOs monitor and report on human rights in China.271 Discussion groups focusing on political reform, particularly if they appear in "cyber society," face particularly strict scrutiny. The 8- to 10-year sentences handed down in 2003 to members of an informal discussion group, which debated issues concerning social and political reform, provide a stark reminder of the limits on civil society in China.

Despite the significant challenges facing NGOs in China, many observers are optimistic about their future. The U.S. Embassy in Beijing concludes in its report on NGOs: "We expect China's growing NGO movement to (gradually) gain in strength, with Chinese authorities (also gradually) ceding political space." (272) Zhou Hongling, founder of the Beijing-based New Citizen Education and Research Center, observed recently that "[t]he development of civil society is like a rolling stone: if you nudge if forward, it will be unstoppable." (273)

353 Hawes, "Dissent and Transparency in Recently Published Chinese Court Judgments," 1, 13.

354 These include the Guangzhou Maritime Court and the Tianjin High People's Court, and the Zhongyuan District Court in Zhengzhou. Hawes, at 8; "Tianjin Becomes First PRC Higher Court to Set Legal Precedents," Xinhua, 1 August 2003, in FBIS, Doc. ID CPP20030801000164.

355 Supreme People’s Court 2003 Work Report, 11 March 2003; Supreme People’s Court 2002 Work Report, March 2002; Randall Peerenboom, China’s Long March toward Rule of Law, (Cambridge: Cambridge University Press, 2002), 294.

356 Supreme People’s Court, Measures on the Management of Publication of Judgment Documents, arts. 2(4) and 4.

357 Peerenboom, China’s Long March Toward Rule of Law, 286.

358 Lubman, Bird in a Cage: Legal Reform in China After Mao (Stanford: Stanford University Press, 1999), 12–13; Five-Year People's Court Reform Plan, Legal Daily [Fazhi ribao], 2 October 1999, No. 1; Supreme People's Court 2003 Work Report, 11 March 2003. In fact, Chinese law provides for the Adjudication Committees and tasks them with "discussing" important or difficult cases. Organic Law of the People's Courts [Zhonghua renmin gongheguo renmin fayuan zuzhifa], enacted 1 July 1979, amended 2 September 1983, art. 11.

359 Commission Staff Interview. Critics of the practice argue when higher courts are consulted in this manner, they often reach decision about the case before the parties have had an opportunity to present arguments on appeal.

360 While some scholars report that this practice is on the decline, others argue that recent rules imposing personal liability on judges for wrongly decided cases have made it more common. Veron Hung, "China's Commitment on Independent Judicial Review: An Opportunity for Political Reform," Working Paper, Carnegie Endowment for International Peace, No. 32, November 2002, 12; Peerenboom, China’s Long March Toward Rule of Law, 315.

361 Hung, "China's Commitment on Independent Judicial Review: An Opportunity for Political Reform," 8; Peerenboom, China's Long March Toward Rule of Law, 311.

362 Ibid. at 9. Formally, people's congresses appoint court presidents at the corresponding level, who then nominate assistant judges. In practice, however, local governments and Party committees control the appointment process.

363 Zhu Qiwen, "Elevate Quality of Judges," China Daily, 9 March 2002, .

364 See, e.g., Supreme People's Court 2003 Work Report, 11 March 2003; Supreme People's Court 2002 Work Report, March 2002; Five Year Plan for PRC Court Reform, Legal Daily [Fazhi ribao], 23 October 1999, No. 1.

365 Peerenboom, China's Long March Toward Rule of Law, 303.

366 Ibid., 305.

367 Cohen, "Reforming China’s Civil Procedure," 797.

368 Stanley Lubman, Bird in a Cage: Legal Reform in China After Mao (Stanford: Stanford University Press, 1999), 264.

369 Cohen, "Reforming China’s Civil Procedure," 798.

370 Ibid.; Lubman, Bird in a Cage, 252. PLCs typically exert their influence through court presidents, which sit on the PLCs, or by making a direct "recommendation" to judges. Hung, "China's Commitment on Independent Judicial Review," 8.

371 Peerenboom, China's Long March Toward Rule of Law, 307.

372 Constitution of the People's Republic of China,, arts. 67(6), 129; People's Republic of China Organic Law of the People's Procuratorates [Zhonghua renmin gongheguo renmin jianchayuan zuzhifa], enacted 1 July 1979, arts. 5–6; People's Republic of China Criminal Procedure Law [Zhonghua renmin gongheguo xingshi susongfa], enacted 1 July 1979, art. 8, chapter V; People's Republic of China Civil Procedure Law [Zhonghua renmin gongheguo minshi susongfa], enacted 9 April 1991, arts. 185–6.

373 See, e.g., the working document of the 16th Party Congress, stating that "we should institutionally ensure that the judicial and procuratorial organs are in a position to exercise adjudicative and procuratorial powers independently and impartially in accordance with the law." Documents of the 16th National Congress of the Communist Party of China (Beijing: Foreign Languages Press, 2002), 43. See also People's Court Reform Plan, Legal Daily [Fazhi ribao], 2 October 1999, No. 1; Supreme People's Court 2003 Work Report, 11 March 2003.