Last month, China enacted its first Charity Law. The National People’s Congress voted 2,636 to 131 in favor of a law which begins the process of creating a pathway for civil society organizations in China to become legal persons registered with the government so they can raise funds and carry on charitable activities.
Days earlier, it was my privilege to be in Beijing at a private dinner as the only foreign guest of a small group of legal experts who have worked on this law since it was proposed in 2005. I have made approximately 50 trips to China since 2005, meeting with the drafting committee at the Ministry of Civil Affairs and other experts. From a government recognition perspective, the high point of my participation in this process was having Vice Minister Dou Yupei come to a working meeting and accord me the high honour of calling me the Norman Bethune of China’s charity law.
Actually, I had been involved in China’s charity law much longer than anyone in the room that day. In January of 1990, I had been hired by the Ministry of Civil Affairs (using Ford Foundation funding) to travel to Beijing and consult on an earlier attempt to pass such a law. Although I made multiple trips to China in the following few years, that attempt was abandoned and not picked up again until 2005.
When I read the law, I find that I am pleased more by what is missing than what is included. Earlier versions had provisions which constrained charities and were more intrusive in regulating and monitoring their activities. It was a struggle to have these provisions removed and, in the end, some remain which restrict independence and flexibility.
The greatest challenge for this law is for its concepts and values to be “rooted in Chinese soil”. In my opinion, simply importing legal words and concepts from Canada would lead the average Chinese person to consider it a foreign construct. If it is truly to succeed in promoting giving and championing charitable activities, local people must embrace it as a Chinese creation. The tension between creating a law which met international standards and appealed to foreign donors and one which reflected the mores of ordinary people in contemporary China was a constant theme of my meetings with Chinese officials. Ironically, I was often the one arguing for sensitivity to local conditions while the bureaucrats pushed for a law which would receive at least an A- in a charity exam at Harvard Law School.
The drafting of the charity law in China has been my most prolonged involvement in advising on charity law in Communist countries such as Russia, Vietnam, Poland, Hungary, Slovakia and Czech Republic etc. The process of thinking through social policy and legal principles in an entirely foreign social and political environment with no recourse to religious traditions such as Christianity, Judaism or Islam to inform values and giving is a very challenging exercise. When one focuses on the evolution of the common law of charity from a historical and societal perspective, one learns how much Biblical teaching on ameliorating the suffering of the poor as well as teaching on tithing and giving has shaped our law.
One of my fondest memories is early in the process getting deep in the weeds describing “pious causes”, pre-Tudor monasteries providing healthcare and education, chantry endowments and the funding provided by tithes, firstfruits and both obligatory and voluntary giving. After awhile, the head of the drafting committee interrupted me to say, with a big smile, “Blake, China is not going to introduce freedom of religion just so that it can jumpstart charity and giving”.
The Chinese government feels safe with Confucianism because of its emphasis on social harmony and secular humanism; but it has no philanthropic tradition. Buddhism’s philanthropic tradition does not have the power of the Abrahamic religions; and is politically problematic if the path leads to the teach of Tibet’s 14th Dalai Lama. It would be extremely unwise to even mention Falun Gong.
This process has also given me a profoundly deeper understanding of the law. Thinking through the concept of “public benefit” and policy issues with a sensitivity to the political environment and potential for social unrest from activists is different than the same exercise in China. (Although, the Chinese did love CRA’s program of attacking environmental and other charities in its “political activities” audits.) Operating in a civil law rather than a common law country provided another challenge.
I suggested to the Chinese that, since the law was now passed, my advice was no longer needed. They immediately said that implementation of the law was more important than the mere drafting of it and asked me to continue consulting with them. I look forward to what I will continue to learn as this process evolves.