Reining in Civil Society: The Chinese government’s use of laws and regulations to persecute freedom of associationComments Off on Reining in Civil Society: The Chinese government’s use of laws and regulations to persecute freedom of association
Reining in Civil Society:
The Chinese government’s use of laws and regulations to persecute freedom of association
While the Chinese government outwardly employs rhetoric about moving towards “greater rule of law”, it has become more skillful in persecuting individuals who organize outside of its control with the use of vague laws, regulations and tax codes. Any independent organization which the government perceives as a threat to its power risks official retaliation. Apart from suppressing individuals and organizations, a further purpose of the measures taken by the government appears to be intimidation, in order to dissuade others from organizing. The effect is to inhibit the growth of non-governmental organizations and, more generally, civil society. Rather than promoting the rule of law, these actions achieve just the opposite: They undermine it and emphasize that the Chinese Communist Party (CCP) is above the law and perceives the legal system primarily as a means of ensuring its control over the populace.
Two main mechanisms are employed to restrict freedom of association. First, stringent administrative regulations make it difficult for organizations to legally register at their inception. They are then under constant risk of being labeled “illegal”, at which point, a panoply of law enforcement measures are employed to shut them down. This report analyzes the steps taken by the government to infringe upon citizens’ freedom of association and examines the experiences of individuals and groups who have organized formally and informally to address political, social and economic issues.
Administrative regulations stipulate that unless an organization is approved by and registered with the Ministry of Civil Affairs (MCA), it is illegal. To register, the applicant must meet a number of requirements that are impossible to fulfill unless the organizers are well-connected to the authorities. Ordinary citizens and especially critics of the government are rarely able to obtain approval. Unable to register with the MCA, many organizers are forced to register their organization with the State Administration of Industry and Commerce (SAIC) as a for-profit legal entity. Without registration with the MCA, these organizations are still considered “illegal” and they often suffer official harassment as a consequence.
The recent persecution of Open Constitution Initiative (or Gongmeng), a Beijing legal-aid center forced to register with the SAIC, is a case in point. On July 14, Gongmeng received notification from tax authorities that they were being fined RMB 1.42 million for “tax evasion”. Three days later, the Beijing Municipal Bureau of Civil Affairs declared the organization “illegal”, raided its office and formally banned it. Gongmeng’s director, Xu Zhiyong (许志永), and one of its staff members disappeared on July 29. It is believed that they have been criminally detained on suspicion of “tax evasion”. In the past year, Gongmeng rose to prominence due to its active involvement in investigating “sensitive” cases, such as the tainted milk scandal and the suppression of protests in the Tibetan areas in March 2008. In retaliation, various governmental authorities acted in concert to swiftly clamp down on the outspoken organization in the name of “law enforcement”.
Similar charges, such as “failure to comply with the required accounting procedures”, have previously been used by the authorities to intimidate organizations. Even if they are not directly targeted by the government, organizations registered as for-profits are generally at an unfair disadvantage compared to officially-backed organizations registered with the MCA in terms of security of operation, tax regulations, and access to funding and other resources.
In the area of labor organizing, the law is used to deny workers the right to form independent unions. The Trade Union Law stipulates that the All-China Workers Trade Union, a government-affiliated organization, is the only union allowed in China. Those who attempt to form independent unions are either ignored or have their applications denied, and organizers are often detained. In the official union, the right of members to choose their leaders is heavily curtailed. Decisions are made by union leadership, which in turn is controlled by the CCP. As a result of these restrictions stipulated in the Trade Union Law, workers find the official unions do not represent their interests in disputes with their employers. Workers often resort to alternative forms of associations, such as collective petitioning, choosing representatives to negotiate with employers, and going on strike. These actions are invariably labeled “illegal” and the organizers are punished.
While establishing and operating independent organizations and labor unions is precarious, nothing assures official retaliation more than forming political associations. Any effort to establish political parties in opposition to, or even simply independent from, the ruling CCP is invariably crushed. Without fail, the Chinese government detains and imprisons the party leaders using crimes such as “subversion of state power”, declaring the party “illegal” and banning it. Even political discussion groups are closely watched and are at constant risk of harsh crackdown.
Besides maintaining tight control over formal forms of association, the Chinese government also treats spontaneous and informal initiatives to organize with strong suspicion, even when they exist only virtually. When citizens come together to aid fellow citizens in distress, such as during the Sichuan Earthquake in May 2008, or when they sign public letters expressing their discontent with officials and making policy suggestions, the government takes the organizers into police custody and intimidates those who join the initiatives.
Many Chinese citizens, however, have persevered in exercising their right to freedom of association despite official obstacles and potential punishment, persistently pushing the boundaries. Even within organizations closely affiliated with the government, there are individuals who press for greater freedom from state control. Efforts by lawyers to press for direct elections of the leaders of the officially-controlled Beijing Lawyers Association is one recent example. Not unexpectedly, those who called for direct elections met official retribution. The lawyers who took lead in the effort lost their license to practice law in May of this year. Significantly, both this act and the closure of Gongmeng targeted lawyers and those who provide legal aid-clear and direct government attacks on the rule of law.
The report offers a set of recommendations to address the current abuses. Since many of the infringements of citizens’ right to freedom of association originate in a legal and regulatory framework designed to violate this right, the recommendations focus on changing it. They call for:
- a constitutional review of these laws and regulations;
- the drafting of an Association Law to protect freedom of association;
- the ratification of the International Covenant of Civil and Political Rights (ICCPR);
- the removal of the Chinese government’s reservation to Article 8.1(a) of the International Covenant of Economic Social and Cultural Rights (ICESCR) which guarantees the right to form independent unions;
- the interpretation of Article 105 of the Criminal Law to clarify and precisely specify conditions under which an act of association may constitute “inciting subversion of state power” or “subversion of state power”;
- the end of the persecution of individuals for peacefully exercising their right to freedom of association and the release of those imprisoned for exercising this right.
TABLE OF CONTENTS
Section I: Administrative Regulations Governing Organizations
Regulations for Registration and Management of “Social Organizations”
Provisional Regulations for the Registration and Management of Citizen-Managed Non-Enterprise Work Units
Temporary Measures Banning Illegal Non-Governmental Organizations
Section II: Barriers to Registration for Organizations
Finding a Government Agency Willing to Act as Sponsor
Meeting Fiscal and Membership Requirements for Registration
Section III: Operating Without MCA Approval: Consequences and Challenges
Organizations which exist as part of a registered social organization
Organizations registered as for-profits with the SAIC
An Unequal Playing Field
Section IV: Workers, Unite! But Only To Join the Official Union
Section V: Political Associations
New Youth Society
Pan-Blue Alliance of Chinese Nationalists
China Democracy Party
China Ximin Party
Section VI: Informal Associations of Individuals
Section VII: Striving for autonomy in established organizations