The Civil Associations Act (人民團體法) is a three-in-one mishmash of a law that does not just put “chickens and rabbits in the same cage,” as the Council of Grand Justices put it, but adds a tiger in with them.
The act was drawn up in the days when the Chinese Nationalist Party (KMT) held a monopoly on political power, and it treats all categories of “civil” organization, meaning those outside the KMT’s party-state apparatus, as objects of regulation and control. Therefore, the law is a baneful legacy of authoritarian rule whose removal is an essential step to take in the quest for transitional justice.
Many academics concerned with the “third sector,” which encompasses not-for-profit, non-governmental and civic organizations have, over the past couple of years, been calling for a major overhaul of the act. The time for such a reform has finally arrived, following the third handover of power from one party to another on May 20.
Now that the Democratic Progressive Party (DPP) is back in power, calls for the act to undergo a health check and major surgery have received a positive response from the Ministry of the Interior, the national regulating authority for this particular law.
Minister of the Interior Yeh Jiunn-rong (葉俊榮) has a doctorate in law and has carried out in-depth research in the field of civil constitutionalism, so he certainly recognizes the positive role that civic, not-for-profit and non-governmental organizations play in relation to a system of freedom and democracy, and wants them to go on playing that role.
Consequently, following the communication and dialogues between academics and government officials over the past few months, the ministry has taken the academics’ proposals on board and is moving toward overhauling the act with what could be summed up as the triple goals of refinement, de-restriction and encouragement.
Considering the progress that the ministry has made toward amending or rewriting the act, the DPP administration is to be commended for its good intentions, and the officials concerned deserve praise for their decisive actions.
Let us first consider the aspect of refinement.
The Civil Associations Act lumps together three completely different kinds of associations — occupational, social and political — without regard for their very different aims and modes of operation. In view of this shortcoming, the sphere of civic associations should be divided into three by replacing the act with three separate laws dealing with occupational associations, social associations and political parties. Of these, a draft political party law has already been submitted to the Legislative Yuan for deliberation, providing a sound basis for going ahead with a legislative process that produces three separate laws.
Only if there is a separate law covering social associations can it comprehensively cover the contributions that not-for-profit, non-governmental and civic organizations have to make to a free and democratic society.
However, in view of the complex legislation involved and the sensitive nature of interministerial powers and responsibilities, it is to be expected that a new law governing social associations would only deal with social legal entities that are based on membership, whether they call themselves associations, societies, alliances or leagues, but not with corporate entities that are based on funds — in other words, foundations.
The legal amendments that are now under way are therefore likely to have omissions and inadequacies with regards to the wide range of groupings that are broadly defined as not-for-profit and non-governmental organizations.
As such, a new social associations law would define social associations as non-governmental, not-for-profit associations that work in the fields of culture, academia, medicine and healthcare; those that promote and protect human rights, equality, community education, the environment, humanitarian aid, international exchanges and peace; those of a religious or charitable nature; and those that promote sports, friendship or other philanthropic purposes and are composed of individual or group members. These organizations may exist to promote reform or to provide charitable services.
The second aspect to consider is that of de-restriction.
Since any new social associations law is supposed to take a positive view of non-governmental, civic and social associations, it should obviously be written in the spirit of de-restriction.
The government should not impose too many unnecessary controls and restrictions — it only needs to set out a few reasonable and uncomplicated standards. In other words, the new legislation should shift from regulation to relaxation and from imposed regulation to self-regulation.
The foundation of de-restriction is to institute a system of registration rather than permission. That would mean that as soon as an association registers with the authorities, it becomes a “public juridical person” or “public corporation.”
Other steps should include relaxing the requirements on the number of founders and an association’s location, constitution, financial statements, dissolution and liquidation. Self-regulation means, among other things, entrusting each association with the responsibility to regulate itself.
Openness, transparency and accountability should be the triple aims that associations require of themselves in the course of their autonomous operations. If associations act illegally, they can be dealt with in accordance with civil and criminal law. There is no need to impose political tutelage or add superfluous legislation.
The third and final aspect is that of encouragement.
Apart from the aforementioned refinements and de-restrictions, the most progressive thing that a new law can do is to embody the “empowerment” and “enabling” that academics keep talking about, or to use terms more commonly seen in law, “encouragement” or “promotion.”
One of the ways in which governments can more actively encourage social associations to develop and mature so that they can play an effective role in promoting reform or serving society is to provide assistance, and one effective way to do that would be to establish a special fund to subsidize the setting up of a foundation responsible for providing information and referrals, and facilitating cooperation across different sectors.
It would also provide associations with on-the-job education, training and legal aid, as well as promoting international exchanges and so on.
In view of these possibilities, the new law could well be called the “social associations encouragement law.”
Michael Hsiao is a distinguished research fellow at Academia Sinica’s Institute of Sociology.
Translated by Julian Clegg
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