(Pix © Larry Catá Backer 2015 )
In 2015, Chinese authorities released an initial draft of a Charity Undertakings Law 中华人民共和国慈善事业法（草案）to which Chinese authorities invited commentary. My submitted commentary may be accessed here (English) and 白轲。关于中华人民共和国慈善法（草案）的评论 (Chinese version). These formed part of a larger set of commentary coordinated with the Foundation for Law & International Affairs (FLIA) (see here).
In January 2016, Chinese authorities circulated a second draft Charity Undertakings Law to which they again invited commentary. (English translation here). This draft incorporated some changes form the prior draft. I have prepared commentary to this second draft, which I have considered in relation to the fundamental substantive obligations to advance socialist modernization under the CCP Basic Line (For my commentary on the CCP Basic Line see eg here). Our friends at China Law Translate tell us that
The public can directly log in to the NPC website ((www.npc.gov.cn)）and provide comments; and may also mail comments to the Legislative Affairs Committee of the Standing Committee of the National People's Congress, (1 West Qianmen Avenue, Xicheng District, Beijing 100805) [in Chinese: 北京市西城区前门西大街1号，邮编：100805. Please indicate on envelope Charity Law Revised Second Deliberation Draft Solicitation of Comments). Comments Deadline: January 31, 2016.
My Commentary to the Charity Undertakings Law of the PRC (2nd Draft) 中华人民共和国慈善事业法（二审草案) may be downloaded HERE and read below. It will be part of a larger formal commentary to be submitted by the Foundation for Law & International Affairs (FLIA)
The Draft Charity Law may be accessed HERE.
For a comparison of the first and second draft see here.
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Comments to Charity Undertakings Law of the
PRC (2nd Draft)
中华人民共和国慈善事业法
（二审草案）
January 30, 2016
Larry Catá Backer
W. Richard and Mary Eshelman
Faculty Scholar
Professor of Law and
International Affairs
Pennsylvania State University
239 Lewis Katz Building,
University Park, PA 16802
It
was my great honor to deliver comments for the Charity Undertakings Law (first
draft) this last November 2015. The
First Draft Charities Undertaking Law presented then an overall important
advance in Chinese rule of law in an important area of social development. It is an important obligation of both the
Chinese Communist Party, and of the State organs that operate strictly under
its leadership. It also served as a
necessary as a demonstration by Chinese state organs of adherence to the great
principles of Socialism with Chinese characteristics to ensure that all efforts
to implement the important policy of rule of law and Socialist legality move
forward the necessary objective of socialist modernization and the correct
development of all productive forces.
The
members of the CCP and state organs charged with this important task have now
produced a second draft of the Charities Undertaking Law. It also represents an important advance over
the earlier draft. It appears to have
taken seriously the need to listen to the people and under the leadership of
the CCP to discern truth from facts and as required under the CCP line, to
“unswervingly encourage, support and guide the development of the non-public
sector” (CCP General Program (GP) ¶ 14).
I expect that much gratitude has been expressed for the hard work
reflected in the Second Draft Charities
Undertaking Law.
It
is with this is mind that I offer here some small comments to the Second Draft
Charities Undertaking Law (or CUL2nd). My comments are focused on a reading of
the Second Draft Charity Undertakings Law both for coherence and for conformity
to the CCP Basic Line. This, I believe, is a central obligation of all members
of state organs involved in advancing the work of state organs. And it is an obligation that might be best
carried out explicitly to ensure strict adherence to fundamental
principles. “The general starting point
and criterion for judging all the Party's work should be how it benefits
development of the productive forces in China's socialist society, adds to the
overall strength of socialist China and improves the people's living standards”
(GP ¶ 9).
Many
of my comments to the First Draft remain useful and might well be considered
again in light of the important changes undertaken in the Second Draft. For that purpose I have included my earlier comment
as an appendix to this one. I focus here
only on the changes made to the Second Draft. In those respects I respectfully
offer the following comments:
General Comments
In the development of the productive forces of the nation,
one might consider two great obligations of both CCP cadres and members of
state organs—the fist is to remain true to the overall direction of the CCP,
and the second is to remain faithful to the goals to which state organs are
directed. Those obligations are clear.
China must build itself up as it progresses from the primary stage of socialism
to later historical stages. “In building socialism, the basic task is to
further release and develop the productive forces and achieve socialist
modernization step by step by carrying out reform in those aspects and links of
the production relations and the superstructure that do not conform to the
development of the productive forces.” (GP ¶ 9). To that end, it is also clear
that “The Party must respect work, knowledge, talent and creation and ensure
that development is for the people, by the people and with the people sharing
in its fruits.” (GP ¶ 9). This is to be accomplished through all around
work to advancing economic, cultural, social, political and ecological progress
“in accordance with the overall plan for the cause of socialism with Chinese
characteristics.” (GP ¶ 9). These fundamental objectives serve to guide the
review of the 2nd Draft.
With that as a guide, it might be important to consider
the following overall points:
1. Is there a
contradiction between the stated overall purposes of CUL2nd as set out in
Chapter 1, and the overall objectives of the state to fully develop productive
forces? The issue arises because it is
not clear that a legal framework that narrowly defines charitable activity and
forces its workers to labor for free can most productively meet its obligation
to alleviate poverty (art. 3(1)). There are no reasons produced to justify the
very narrow definition of charitable enterprises as organized on a voluntary
basis and there is no indication of why it is that free labor strictly adheres
to the CCP line. The fact that people
willingly contribute in many cases does not solve the problem but merely points
more acutely to the contradiction.
2. A core element
of socialist modernization is shared prosperity. That must be built on respect for and the
dignity of labor and the working masses.
Just as core Socialist values abhor the exploitation of labor by
capital, so it should abhor the exploitation of people. This presents
two issues. The first, which is
dealt with in a sensitive and very useful way by CUL2nd, concerns those who
labor in other ways and in their free time also seek to contribute to the great
national project of socialist modernization through charitable works. That is, as the CUL2nd recognizes a worthy
and patriotic exercise that should be protected and recognized.
3. But there is another more important aspect, one
lamentably overlooked. For some people,
charitable work may present the principal or only way that they may be socially
useful. It may represent their only
means of employment. For those people,
charitable organizations serve two
important purposes. The first is recognized by the CUL2nd—to engage in
those activities specified in Article 3 for the benefit of people and social
institutions outside of the charity itself.
But the second purpose of charitable organizations—one not recognized or
supported in the CUL2nd—is that charitable organizations also serve to provide
for poverty alleviation, socialization and other productive work within its
organization and for those who work for the charity itself. It is thus possible
to understand that a core role of charitable organizations is to provide
charity through its own work internally for its own workers. That important
element of developing productive forces, that important task of using
charitable organizations for the strengthening of a solid path toward socialist
economy, socialist harmonious society, and socialist culture, appears wholly
absent from the CUL2d. And it is
unfortunate to lose this great opportunity to further the CCP’s leadership
objectives through an unnecessary limitation on the conception of meaning of
charity, the importance of reducing labor exploitation and of providing a means
for advancing socialist goals.
4. As such, the principle of “voluntariness only” built
into the CUL2nd might usefully be reconsidered.
No suggestion is made to eliminate the principle of voluntariness as a
central element of charitable efforts, but rather to recognize that charity can
be structured both externally toward objects of charity and internally toward
reducing exploitation, helping people help themselves through work reasonably
compensated and in this way serving as a better example of the value of the
Socialist path toward improving the welfare of the people.
5. The issue of
foreign charities must be considered.
This issue might be usefully understood in two quite distinct
aspects. The first involves the foreign
funding of Chinese charities. The second
involves the direct operation of foreign charities in China.
(a) Foreign funding
of Chinese charities should in the first instance be encouraged. It serves as a measure of the growing
importance of China in the world and opens the door to Chinese funding of
charitable works elsewhere. And indeed,
Chinese efforts to fund charitable causes outside China, especially in Africa,
is a model to be studied scrupulously and admired. But it also underlines the importance of
mutuality in these efforts. With respect to these funding efforts, careful
disclosure and the usual supervision of Chinese charities ought to be
enough. But in the second instance, foreign funding may be more sensitive. Here I refer to foreign funding that comes
from foreign governments, public international organizations and the like. This represents funding of a distinct
character and touches on sensitive issues of sovereignty and respect for the
integrity of national political orders.
Funding of charities by foreign public bodies might be best controlled
and supervised more carefully and in some instances, according to law,
restricted.
(b) Direct operation
of charities of foreign charities in China should in the first instance be
encouraged. Foreign charities that
are strictly supervised in accordance with the provisions of the CUL2nd, for
example, can do little harm and will contribute to the development of
productive forces. In this case the law
itself provides the basis on which foreign elements can be most usefully
managed. Many foreign charitable
organizations already serve the interests of China well even as they meet their
own charitable objectives. That
compatibility of purpose serves as the best reassurance of benefit—and well
supervised by officials who act strictly but fairly and avoid corruption or
personal aggrandizement, ensures sound operation. However, direct operation of
foreign charities operated by or funded through foreign governments might
require stricter supervision. In the
case of foreign charities that are controlled by foreign states or political
bodies strict supervision is required and in some areas, according to law,
restrictions imposed. Foreign charities
that are funded in part by foreign governments require strict monitoring, but
as long as they work within the CUL2d they might still be useful. Political
organizations from foreign areas require much stricter control. But that
requires a precise definition of the sort of activities that may be encouraged
and those that might be prohibited. And it might usefully be written so that
they appear consistent with the CCP line and understandable to foreigners who
must be guided by its rules.
6. The CCP line
suggests that it is necessary to draw a strict line between foreign charities,
which when operating under law, contribute to the process of socialist
modernization, and foreign civil society organizations whose work might be more
strictly regulated with respect to its effects on internal politics. It might
be less useful to conflate all foreign elements into one category; that would
work to the detriment of socialist modernization. But it might be valuable to begin to
distinguish, under law, between foreign efforts that are compatible with
Chinese objectives and those that require more careful supervision.
In addition to these general comments, I offer these more
specific observations and comments on CUL2nd in hopes that they might prove
useful.
Chapter 1
1. The change to Article 2 usefully centralizes
the regulation of all charity through CUL2nd.
Some efforts might be undertaken to ensure that all relevant rules do
not conflict or overlap. Socialist rule
of law is not advanced where in the rush to produce law many fail to relate to
each other and create chaos rather than order.
Article 6 is a partial but quite useful step in that direction.
2. The inclusion of public health incidents and
the focus on poverty alleviation is applauded.
It might be useful to consider protections for charities against local
officials who fear loss of face for failures to alleviate poverty or respond
appropriately to such incidents, and will then act against charities. A
stronger connection to the work of the Central Disciplinary Committee’s work,
then, may be appropriate.
3. Article 5 is a very useful provision. It is
to be assumed that socialist core values always represent the traditional
virtues of the Chinese people now developed and advanced scientifically through
the leadership of the CCP. To that end
it may be useful for charities to articulate and be reminded of the overall
importance of this objective in framing their charitable missions.
4. Article 7 designates “China Charity
Day.” That might also be a good day for
charities and officials to report on the success of their efforts to put
forward the goals of CUL2nd.
Chapter 2
5.
Article 10 provides some discretion in extensions of time to review of
applications. It might be useful to develop
a mechanism within the civil affairs department for ensuring that their
obligations are carried out.
6. New Article 13 provides that charitable
organizations carry out their work in accordance with their charters. It is not clear who or how that provisions
will be enforced. It may be useful to
permit the members of the charity itself the right to seek enforcement from the
civil affairs department, or it may be for the civil affairs department to
investigate after complaint. Either way
a specific mechanism would be useful.
Chapter
4
7.
Article 56 references the standardization of rules for reporting the financial
activities of charities. That is
important. The revision that mandates
greater cooperation among ministries is also important. But coordination among state organs is only
half the issue. Unless these standards
are communicated to charities in a uniform and simple way, the standards
themselves may become either obstacles to the work of charities, or a trap for
innocents unaware of the rules, and thus serve the dark forces of
corruption. It is therefore useful to
consider the means by which these rules might be clearly and completely
distributed. And the distribution might
extend not just to the managers of charities but among the people so that the
masses may aid in the project of vigilant application of the law.
Chapter
9
8. It is not clear why the state would tax the
charitable contributions that are made to charitable organizations. It is even less clear why the state would tax
income received by charitable organizations and then applied to its charitable
purposes. Because those purposes are
significantly touched with a public purpose it seems to create an impediment to
their work. It might be worthwhile to consider whether the better rule would be
strict disclosure of all income and all expenditures and a strict application
of the rule that all income must be applied for charitable purposes—a rule
already written into CUL2nd.
9. What tax law might help prevent is corruption. Corruption here might be manifested in one of
two forms. First the directors of the
charity might divert fund to their own personal benefit and second the charity
might divert funds to officials to obtain favors or special treatment or to
avoid trouble with local officials. It
would be useful for the civil authorities—and the Central Disciplinary
Committee—to monitor such expenditures and tax accounting and reporting might
be an efficient way to to that.
Chapter
10
10. New Article 93 represents a greater advance
for the CUL2nd. The ability to establish
charity organization standards among charitable organizations aids in
strengthening socialist culture and harmonious society. It is assumed that such industry standards
will be developed under the leadership of the CCP and in conformity to its
line.
11. Industry standards might usefully be widely
distributed among the people so that the CCP and state organs might make better
use of mass line techniques to supervise and develop the productive forces
represented by charitable organizations.
Chapter
11
12.
The provisions of Chapter 7 suggest the scope of volunteer services. I have spoken to the unnecessary limits of
that approach above. I speak here,
however, of the liability of volunteers or of the charities themselves for
damages or harm that might be caused by them in the provision of charitable
services.
9. How does the law fairly apportion
responsibility for harm caused by the work?
It may not be fair to impose liability of volunteers for the harms they
cause in carrying out charity work. That
would impose a double burden on individuals—first working without pay and then
paying as if they were working for an enterprise. At the same time it may not be fair to impose
obligations on a charity where a volunteer deliberately or maliciously produced
harm. As a general rule, though, it
might be fairer to impose obligations for harms on the charity itself.
10. Another alternative would be to limit the
liability of charities and their workers for any harm caused by their
work. Exceptions might be made for acts
that are intentional or malicious or thoroughly reckless. But such a limitation on obligation might be
necessary to encourage charity work. And the issue of the responsibility of the
charitable organization for the welfare of its volunteers might also extend to
harms suffered while the volunteers are on the job.
11.
The rules elaborated in Chapter XI “Legal Responsibility” suggest no special
treatment in the event of harm. Article 102 provides a simple negligence
standard for liability by charitable organization to others. It also provides
that charitable organizations may recover from a volunteer under an intention
or gross negligence standard. Lastly it provides compensation to volunteers on
a simple negligence standard as well.
This is a fair standard, though it puts the burden on those who suffer
injury to go to the further expense and trouble of seeking to recover for that
harm.
12. It might be useful, however, for the state to
consider the creation of insurance measures to aid charities. Charities might contribute to a national
insurance pool that might pay claims based on the negligent conduct of
charities and because risk is pooled the overall cost to any one charity would
be reduced—freeing more money toward useful charitable work.
__________
APPENDIX
Comments to
Charity Undertakings Law of the PRC (FIRST Draft)
中华人民共和国慈善事业法（草案）
November 2015
Larry Catá Backer
W. Richard and Mary Eshelman
Faculty Scholar
Professor of Law and
International Affairs
Pennsylvania State University
239 Lewis Katz Building,
University Park, PA 16802
1.814.863.3640 (direct),
lcb11@psu.edu
The Charity Undertakings Law (draft) overall presents
an important advance in Chinese rule of law.
It is an important measure dealing with an issue tied closely to the
direction and shape of socialist modernization, and as such, touches on
sensitive matters requiring leadership from the Communist Party, especially as
the CCP “unswervingly encourages, supports and guides the development of the
non-public sector”(CCP General Program (GP) ¶ 14). My comments are focused on a reading of the
draft Charity Undertakings Law both for coherence and for conformity to the
Chinese Communist Party Basic Line. “The general starting point and criterion
for judging all the Party's work should be how it benefits development of the
productive forces in China's socialist society, adds to the overall strength of
socialist China and improves the people's living standards” (GP ¶ 9). In those
respects I respectfully offer the following comments:
Chapter 1
1. It might be
useful to align the focus of Articles 1 and 3.
Article 1 touches on the legislative purpose,
which include developing the productive forces (GP ¶ 9) represented by charity,
the protection of charities and their stakeholders, and the promotion of social
harmony. Chapter 3 defines charity to include a broader scope of activity—enhancing
sports, culture, education, environment, etc.
One might read Article 1 as touching only on the laudable goals of
building a harmonious socialist society (GP ¶ 17). Yet Article 3 also speaks to developing an
advanced socialist culture (GP ¶ 16); environmental protection (GP ¶ 18); and
in “taking economic development as the central task. . . country through
science and education, the strategy of strengthening the nation with trained
personnel and the strategy of sustainable development” (GP ¶ 11). It might be useful to align the two sections
to better reflect the CCP’s basic line for developing China’s productive forces
through charitable efforts and in the definition of charity.
2. Article 4
correctly situates charity within social morals, the legal rights of others and
the focus on public benefit. To the extent that the intent is to restrict
profit, then the provision makes sense.
And, indeed, that should be the interpretation reading articles 4 and 9
together. But that applies to the
institution, not the individual. The provisions of Chapter 7 appear to make
that clear (§§ 63-68). But it may be too broadly rendered when it also suggests
that people who devote themselves entirely to charity should do so without
payment. To the extent it suggests that people work without pay, that itself
might suggest a contradiction with the CCP’s basic line on worker dignity and
the avoidance of exploitation. More
importantly, if only voluntary and part time efforts are permitted for
individuals, without pay, then the utility of charity as an important means of
developing mass culture, the development of harmonious society, and worker
training, may be adversely affected to no good end. It might be worth
permitting individuals who labor for charities to receive a fair wage.
3. Article 5 is
a very useful provision. It is to be
hoped that such planning will be undertaken strictly to advance the CCP’s Basic
Line. It might be useful, in that
respect, to consider the development of a reporting mechanism so that these
plans might be reviewed and approved by the appropriate level of government. In that respect Article 6 quite correctly
emphasizes the need for coordination, but might also benefit by including an
assessment obligation as well.
Chapter 2
4. Article 9 provides a valuable framework for
managing charities. It is not clear,
however, whether charities may acquire the necessary funds or property from
individuals or organizations outside of China, and if so, the extent to which
such contributions will be examined by the authorities.
5. Article 10
provides a reasonable approach to registration.
Two additional considerations might be made: First, should a national
registry of charitable organizations be maintained? Second, should an
organization be given a chance to correct errors and omissions and apply again
should its registration be rejected?
With respect to the first, a national registry might be useful to reduce
fraud and corruption, an important element of the Basic Line (GP ¶ 23). With respect
to the second, the right to reapply is implicit but not explicit and it might
help lower level governments better understand the law if this was made clearer.
6. Articles
11-16 appear sound. One might consider a
few points. First, it is assumed but
never stated, that the General Assembly has the responsibility for ensuring
assessment and improvement of charities, but their power to make that happen
are unspecified in Article 11. Perhaps requiring the Board of directors to
submit annual detailed reports of activities to the General Assembly (and to
the government at the level of charity registration) might make accountability
stronger and reduce the temptations of corruption. Moreover, it is not clear
what the relationship is between donors (§ 15) and the General Assembly (§ 12).
7. Article 17
is important and necessary if foreign NGO work is to be aligned with the
overall obligation to adhere to the CCP basic line, develop productive forces
and ensure the path forward through socialist modernization of economy,
politics, culture, society and environment. It is not clear, though it might be
assumed, that a foreign NGO need only establish a local organ within China to
meet the requirements of Article 17.
That is, once Chinese citizens establish a charity under Article 10, that organization can be
affiliated with the foreign NGO, receive funds and other materials from the
foreign NGO and adhere to the foreign NGOs basic line. This appears a necessary
reading of §§ 10, 17 and 20. If that is
the case, then Article 18 suggests the limits of foreign NGO influence—which is
no different than the ordinary requirements applicable to Chinese
charities. That is, foreign NGOs will be
treated the same as Chinese charities and subject to the same rules and the
same limitations. That is sound policy
and accords with the CCP Basic Line (¶ 17, 25). It is also central to the CCP’s
Basic Line or reform and opening up (“the basic state policy of opening up and
assimilate and exploit the achievements of all other cultures” (GP ¶ 13)).
Chapter 3
8. The provisions on charitable donations are laudable
and well written. However, they appear
to emphasize collection mechanisms more effective in traditional systems and
less useful in the great cities of modern China. It might be useful to permit, and regulate,
new internet based collections.
9. There is no
reason to limit the collection of charitable contributions from within China.
Certainly Chinese charities ought to have the authority to make appeals for
donations in other countries. While it
is to be expected that such donations would be carefully regulated, and that
one would expect such appeals and the property collected to be effected in a
wholly transparent manner, there is no reason otherwise to restrict. This is especially the case where overseas
Chinese communities might be donors.
Chapter 5
10. Anti corruption protections must be at the heart
of the Charities Law (GP ¶ 26). For this
reason Article 48 is most welcome. However, it might be useful to elaborate on
the nature of corruption and corruption activities for those entrusted with the
objectives, work and property of charities.
It is not merely a matter of conflict of interest, as Article 48
covers. It is also a matter of duty—here
the duty to ensure that all charitable decisions are made solely to advance the
objectives of the charity, inline with the overall objectives of socialist
modernization, and that the directors of the charity can transparently
demonstrate compliance with this duty. That touches on all aspects of the
operation of the charity, as well as on the nature of the relationships among
the members of the ruling councils of the charity itself. It is not clear that
the Charity Law sufficiently deals with the issue of corruption in this
respect.
Chapter 7
11. The
voluntary nature of participation in charitable work (§§ 63-68) appears to take
a traditional approach to the enterprise of providing charitable services to
the masses. It is not clear that this narrow position fully embraces the CCP
Basic Line of opening up and emancipation of the mind (GP ¶ 13). I have suggested that such an approach might
hamper the full development of productive forces and thus create a
contradiction with the core objectives of socialist modernization. This is
particularly true with respect to the building of socialist harmonious society,
socialist culture and socialist
ecological leadership, all key elements of the CCP Basic Line. It is true that under traditional models,
charity was thought to be an addition to the main work of individuals in
contributing to society. But that
ancient view fails to consider the importance of the work of charity, and the necessity of investing societal productive
forces to produce substantial improvements to the lives of people who might
then be better positions to more vigorous contribute to the construction of a
socialist market economy (GP ¶ 14; through training, socialization, and
education), socialist culture (GP ¶ to
“raise the ideological and moral standards and scientific and educational
levels of the entire nation so as to provide a powerful ideological
guarantee”); socialist harmonious society (GP ¶ 17 to “to create a situation in
which all people do their best, find their proper places in society and live
together in harmony”); and socialist ecological advancement (GP ¶ 18 “that
leads to increased production, affluence and a good ecosystem”). It is useful, then, to consider permitting
charities to hire and retain staff to further consolidate, improve and carry
out their work. Indeed, it would seem
that Article 11 of the Charities Law would itself require charities to press
this point to improve their governance structures and the efficiency of their
operations.
Chapter 8
12. Chapter 8
is an important element of the Charities Law and is well written and
comprehensive. But it lacks an important
connection between the obligations of charities to disclose, and the
obligations of local governments to make those disclosures public. Moreover, the Charities law does not impose
local governments any obligations with respect to the good order of their
management of charities, and no way for the masses to communicate with local
officials respecting the work of charities.
“The Party follows the mass line in its work, doing everything for the
masses, relying on them in every task, carrying out the principle of "from
the masses, to the masses," and translating its correct views into action
by the masses of their own accord” (GP ¶ 26). It is not clear how the Charity
Law fully further develops and applies the mass line obligations to the operation
of charities and to the responsibility of state organs in this critical
arena. There might be room for
improvement here. And that improvement
itself can contribute both to socialist rule of law and democracy (GP ¶ 15
“effective measures to protect the people's right to manage state and social
affairs as well as economic and cultural programs”). Local officials should be required to listen
to the people in judging the effectiveness of charities and in considering
proper management off charitable affairs. It ought to consider whether its own
approach to charity disclosure is appropriate in light of mass opinion,
appropriately translated as is its responsibility within the mass line itself.
This is especially important with respect to statistical information (§70) and
the content of disclosure (§ 71). It is
not clear that there is a reason to withhold that information, restricting
public reporting to those items listed in
Article 72.
Article 72.
13. Article 78
on confidential information is important and correct. But in it lies a
contradiction that the Charities Law does not yet overcome. That contradiction
lies in the ability to use the broad categories identified in Article 78 as a way to enhance the ability of officials to
engage in corrupt activities with impunity. That itself would constitute a
severe breach of the CCP Basic Line, and should not be left unresolved without
very good reason. Some facility must be created to ensure that Article 78 is
not abused by corrupt officials. This
would be especially important where corrupt officials might use their positions
to operate through charities in ways that would hide their own bad actions.
Tigers catch their prey under cover of darkness; they should not be allowed to
feed with impunity on the donations intended to improve society. Senior
officials should carefully consider the discretion built into Article 78 and
build a cage of regulation around the discretion that they have provided—a
discretion large enough so that any tiger can escape, and open enough so that
even flies find its rules easy to avoid.
Chapter 9
14. These
provisions are useful. But it might be
worth considering that local officials may delay their duties. That delay could seriously impede the
implementation of the law and the useful operation of charitable activities.
Government officials who delay without cause ought to be subject to swift CCP
discipline. Others ought to be
disciplined appropriately and charities should be given the power to seek
registration from a higher level of government where the failures of a lower
level make registration, or operation, impossible.
15. Article 90
and 91 are laudable and reflect well on government. But again, they might create an opportunity
for corruption. Especially when combined
with the secrecy rules of Article 78, Article 90 and 91 can provide a large
space where corrupt officials might operate with impunity. It is especially with respect to the
entanglements of government officials, money and charities, that transparency
must be much fuller. Alternatively, in
such cases (Article 90 or 91 transactions)—local officials must be required to
fully report on their activities to the next higher level of government—and to
do so within a short period of time after they have engaged in such activity.
In addition, the CCP disciplinary organs should be made aware and monitor such
activities. It is only in this way that
the state can truly achieve the excellent objectives of Article 92 (cultivation
of charity culture).
Chapter 10
16. Article 100
achieves the objective of ensuring that localities can adjust their regulations
to local conditions. But the central
authorities ought to be able to review and assess local deviations. A central data bank of local regulations
should be maintained by central authorities, at a minimum. And the central
authorities ought to make inspection tours of local operations
periodically. This is especially
important with respect to the powers exercised under Article 101. The central government retains its
responsibilities to ensure the development of socialist rule of law. And that responsibility might require as well
substantial oversight and assessment of local government behavior in light of
their own legal responsibilities under the Charity Law. The Charity Law already
has a model for this sort of oversight—Article 109 speaks to supervision by
umbrella organizations. The same might
be extended to the oversight of central authorities.
17. Article 112 provides a useful means of helping
fight corruption—either by charities or by local officials. But it might be useful to consider the
mechanics of public reporting. Might it
be more efficient to centralize the collection of such complaints at the provincial
level so that the more sophisticated machinery of the provinces might serve as
a more efficient point for local discipline?
Perhaps a better coordination of Article 78, 90-92 and 112 would produce
a more efficient system against corruption.
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