Developing a working model for legal NGOs in China. (non-governmental organizations)

• Published date: 22 September 2011
• Author: Qi, Mei
• Date: 22 September 2011

The history of civil society in China is relatively short compared to many other countries. (1) The history of civil society organizations (CSOs), or what the international forum knows as non-governmental organizations (NGOs), (2) is therefore even shorter. In recent years, however, NGOs have been paving significant new ground in the People's Republic of China (PRC), opening up areas no longer strictly within governmental control to provide services to the public. This change is due in large part to China's reform and economic development, which will be discussed in greater detail later. However, as NGOs in China are currently subject to the regulations of China's Communist Party, they do not enjoy the same independence NGOs elsewhere do. Despite these limitations, legal NGOs are cropping up to answer the societal call for direct legal services. One successful legal NGO puts forth a model upon which to base growing NGOs who strive to sustain themselves in the relatively new niche allocated to civil society.

This Note first explores the roots of civil society in China and the factors involved in the emergence of NGOs under the Communist Party. Second, this Note examines the relationship between the current state and NGOs. Third, this Note explains the details of the proposed model of the Beijing Children's Legal Aid and Research Center ("BCLARC") and the strategies it suggests for successfully implementing the model. Last, this Note argues for the merits of BCLARC's model based on BCLARC's own success, the recent developments in civil society and government policy, and the traditional political attitudes rooted in Confucianism that continue to influence the country today. The Note concludes in favor of BCLARC's proposed working model of an effective and sustainable legal NGO.

Terminology is also an important aspect of NGOs and their perception in China--there is no consistent term for them and they have been referred to in writing as "civil society organizations", "social organizations", "non-profit organizations", or "mass organizations", along with the international standard "non-governmental organizations". (3)

I. THE DEVELOPMENT OF POST-1949 CIVIL SOCIETY IN CHINA

We must first examine the background of civil society in China to fully understand the context in which the new NGOs operate.

Many factors have contributed to the recent emergence of NGOs in China, and many of those are intertwined with the reasons that civil society itself has been so comparatively late to develop. First, the historical Chinese social structure was based not on the individual, but on the family. This social structure did not demand the development of a civil society. (4) Second, before the reforms in 1978, there were few diversified and conflicting interests due to the absence of a flourishing economic market. There simply were no strong interests requiring the development of civil society. Moreover, before the reform, the government touched every corner of society; there were no gaps for civil societies to fill. (5)

A. Social Organizations Short of NGOs

Though modern NGOs have been slow to develop, recent academic studies reveal that China, in fact, had "social organizations" as early as the Sui, Tang, and Song Dynasties. (6) Mass organizations also existed under the Communist Party, from 1949 until the Cultural Revolution, and were promoted as citizens' organizations celebrating the power of the people. These organizations, however, were not nearly as independent as modern NGOs would become; the Party continued exercising significant control over the political orientation and identity of those so-called NGOs. (7)

After the reform and opening policy of the 1970s, China saw significant economic changes. Decentralization and market competition opened up more opportunities for society and altered the ways in which society interacted with the state. (8) China's drive towards economic reform and modernization in the past twenty-five years created new opportunities for citizen participation. (9) The Chinese people sought ways to organize their own institutions in response to social needs and to convey grievances and concerns in a way that influenced the policy-making process.

B. The Emergence of NGOs within the New Civil Society

Many social scientists believe that the ability of a country to progress toward a more open, pluralistic, and competitive political system hinges on whether the country allows a civil society to emerge. (10) While the concept of civil society is an abstract notion covering a wide variety of social dynamics, (11) the crucial measure of its presence in any nation is the ability of NGOs to develop and progress. (12) At this point, China is experiencing these sorts of dynamic social changes, a foreshadowing of emerging civil society.

After the reforms conducted by the Chinese Communist Party in the 1970s, a greater demand for NGOs emerged along with the rapid development of the market. There were many areas that required more attention than the government or the market could provide. (13) Those gaps were where NGOs were most needed; this resulted in the rapid growth of NGO work in China. (14) The Communist Party and government were actively calling on "social forces" (shehui liliang) to "subsidize and fall gaps in state services" by the late 1980s. (15) Government agencies helped establish many government-sponsored organizations (termed "government-organized NGOs" or "GONGOs") in order to advance state-directed philanthropy and create professional, trade, and industry associations. (16) Numerous groups and associations emerged in the first ten years, some boasting national networks that could support the federal Ministry of Civil Affairs in local areas. (17)

Today, statistics from the Ministry of Civil Affairs show that more than 380,000 NGOs currently exist in China. (18) Another source claims that the number of active NGOs is actually as high as 700,000-800,000. (19) The number discrepancy may be attributed to the fact that numerous NGOs operate without being registered, and the Ministry will only report those who have been officially documented. (20) Despite the uncertainty of the exact number, it is evident that China's non-governmental organizations are on the rise and playing key roles in their respective sectors.

Existing NGOs in China have typically been focused on environmental protections, education, women and children's rights, and health and medical rights, with particular emphasis on HIV/AIDS. (21) These areas of nongovernmental work have been more tolerated, if poorly, by the government. (22) However, amidst these permitted NGOs, very few operate in the legal field.

Modern NGOs in China boast a variety of strengths and suffer from weaknesses as well. Their strengths include an increased capacity for organization and a focus on grassroots demands. Chinese NGOs have also welcomed both experts and volunteers and have actively cultivated better interaction with other stakeholders such as government agencies, the business sector, and the international community. Their weaknesses include lack of a clear mission and long-term strategy; lack of operational experience, including transparency and accountability; and lack of professional human resources. Low pay rates prove to be obstacles for NGOs seeking to attract qualified people. (23)

II. THE RELATIONSHIP BETWEEN THE STATE AND THE NGO

NGOs in China do not enjoy the same independence as NGOs in many other developed or developing countries. The environment provided by the Chinese government and political sphere remains central in what an NGO in China is capable of achieving or what it is even permitted to do. An ideal relationship between the state and civil society would be one of cooperation and coexistence, as well as of conflict and clash; that is, while society should not undermine the necessary powers of state authority, neither should the state overshadow the function and autonomy of society. A strong civil society would only better achieve a government's objectives of development and reform. (24)

However, despite the growing development of civil society and NGOs, the Chinese government has continued to maintain a restrictive regulatory environment. National regulations require NGOs to register with the Ministry of Civil Affairs, which in turn requires the NGOs to have a government-approved sponsor organization. Translated into practical terms, this means NGOs must effectively be sponsored by the Chinese Communist Party or the government. (25) This requirement has been criticized as too strict even by researchers inside the country. (26) The state remains reluctant to give full autonomy to NGOs. Social stability remains the paramount concern. (27) Recently, China's Communist Party appears to be gradually embracing a notion of public participation that opens the way for more independent NGOs. Both the Ministry of Civil Affairs and the State Environmental Protection Agency have demonstrated support for civil society organizations. (28) The government even issued new regulations for the management of foundations, (29) illustrating the state's willingness to modify the legal environment in which NGOs operate. (30) As one observer noted, "The state is progressively recognising that civil society is an effective mechanism to address the social problems resulting from the market economy." (31) Of course, it will be some time before the state embraces its role in stimulating and protecting a flourishing civil society. (32) Numerous challenges for NGOs remain. Even now, individual organizations often face official censure or retaliation when they directly challenge governmental decisions. (33) Overall, however, recent developments demonstrate that the situation for NGOs is improving.

III. THE ROLE FOR LEGAL NGOS: BCLARC'S PROPOSED STRATEGIES

As mentioned above, the most prominent NGOs...