Keynote for the Research Conference on Philanthropy and Giving in India, Centre for Social Impact and Philanthropy (CSIP), Ashoka University, April 28-29, 2022 by Mark Sidel

Mark Sidel is Doyle-Bascom Professor of Law and Public Affairs at the University of Wisconsin-Madison and a specialist in the law and policy affecting nonprofit and philanthropic organisations in Asia and the United States

My thanks to the Centre for Social Impact and Philanthropy and colleagues there – Swati Shresth, Divya Chopra, Ingrid Srinath, and others – for inviting me to do this keynote.

CSIP has rapidly become a leading research center and think tank on civil society, philanthropy and social impact in India and far beyond. I’m delighted to be affiliated with it and able to speak with all of you today.

The research projects introduced by the CSIP Research Fellows and the presentations by the research fellows and others today have been detailed, nuanced – wonderful all around. And I’m honored to see many old friends and new friends here today.

The title of my talk is “Civil Society in Asia in the Covid Era: A Comparative Look at Key Themes Across the Region.” I want to mention some issues that keep coming up across the region from South Asia to Northeast Asia and in between.

But I don’t want to bury the lead here. I want to start off with my key theme.

The heavy hand of the state on civil society and philanthropy in Asia

And that is that, of the many threats to philanthropy, civil society, social impact, and social innovation across Asia, the greatest threat in my view is the heavy hand of the state, what we sometimes call authoritarianism – both existing authoritarianism and the emergence of authoritarian tendencies and trends in countries across the region, often exacerbated by policies during Covid.

At the International Center for Not-for-Profit Law (ICNL), with which I’ve been proud to be affiliated for many years, we study these issues intensively. I’m putting a link to one report that my wonderful colleague David Moore and I did on these issues up in the chat box now in case anyone is interested in reading some more about these themes.¹

There are, of course, many others who have discussed the heavy hand of the state and the increasing challenges that authoritarianism poses to civil society and philanthropy, including our colleagues here at CSIP, others in India, and others far beyond.

Policy debates within the civil society and philanthropy family – Not the key threat to our sectors in Asia

Yet the heavy hand of the state is not the theme that comes up the most in discussions of challenges to civil society and philanthropy across the region. Instead, we often see debates that are within our families, so to speak. Those debates can be heated and divisive, with strongly held views. But the issues raised in those debates are not, in my view, generally the key challenges facing our sector.

It is useful, however, to mention some of those debates and developments because they get a lot of attention around the region, and because – even before I come back to the increasing heavy hand of the state – these issues and developments are themselves often important in policy terms.

Those issues, debates and developments include:

• The ongoing debates over measurement and metrics in our sector, and the closely related issues of measuring impact.
• Debates over corporate social responsibility, and various facets of it, and whether CSR – mandatory or discretionary – is having any lasting effect on the problems in society and of social justice that plague all of our countries.
• The broader debate on the corporatization of philanthropy and other forms of voluntary sector activity
• Significant disagreement about cultures and styles of grantmaking, and criticism of some funders for the types of work that they do.
• The increasing cult of personality in philanthropic leadership in some countries (including my own), and the sometime conflict between personalization in philanthropy and the professionalization of philanthropic institutions
• The rise in various forms of fundraising, including but not limited to crowdfunding, and the attempts by governments to understand, regulate and control fundraising
• The drive to “professionalize” and regulate volunteering, versus the continuing need for vitality in independent and spontaneous citizen action
• Increasing links between government funding and voluntary sector action, and all the pros and cons that come with that

These and many other issues are under heated debate in philanthropic and civil society circles across the Asia-Pacific region. Some of them – like the rise in fundraising regulation, and the rise of state control over volunteering – certainly involve greater state involvement with the sector.

The heated nature of those discussions, and their importance in policy, can sometimes make it seem like those are the primary issues, the primary debates within our field.

For sometimes we spend too much time criticizing each other, even being authoritarian toward each other. There are many ways to do philanthropy well. There are many ways to work effectively with civil society. And we have to recognize that those who work in our sector – whether activists or grantmakers or in other roles – need to have the freedom that true civil society encourages, rather than being criticized for failing to measure up to some other philanthropist or activist’s view of so-called best practices.

Sometimes we must unite more than we do – the metricians and those who are skeptical of the trend toward more and more measurement; those who favor endowments and broad organizations grants and those who focus on funding specific projects; the so-called “trust” philanthropists and those who require more reporting and more accountability; the activists, and those who work within our sector to support government social service programs.

We have many divisions, but fundamentally we are one family, despite our often firmly held differences. These debates over the policy and political issues mentioned above are not the main challenge to our sector.

The key threat – the state and increasing authoritarian pressures

The main dangers to philanthropy and civil society are not from those with whom we disagree but from the growing power of governments, often authoritarian governments and emerging authoritarian governments and political leaders.

This is not to say that the state, and authoritarianism, and creeping authoritarianism, always focuses on those who practice in civil society and philanthropy. Philanthropy and the voluntary sector may not be first on their target list. That does not diminish the danger.

Let me give several examples.

In my country, the United States, we went through four years of an administration that deeply wished to be authoritarian and was moving in that directly. But in fact, as with Trump in the United States, authoritarians may leave philanthropy and the voluntary sector alone at the beginning, focusing on other matters to try to control – like stealing elections and installing friendly judges. But we now have enough experience with authoritarian governments and leaders to know that they seek to constrain and narrow philanthropy and the work of the voluntary sector as well, sooner or later.

Take a different example – an authoritarian state, China. No one can doubt the authoritarian nature of the Chinese regime. I have been working in China for fifty years, and I know how strong that authoritarian behavior can be, including toward civil society organizations that the Chinese Party and state seek to suppress.

And yet, at the same time – paradoxes abound here – authoritarian China has one of the most vibrant and dynamic voluntary sectors anywhere in Asia, with hundreds of thousands of organization doing fine social service and other work that a strong Communist Party and state permit them to do. And, in some controlled cases, even law-related NGOs able to bring some public interest suits on behalf of citizens and organizations.²

So these can be complex phenomena. I consider the heavy hand of the state and authoritarianism, existing or emerging, to be the key danger to our sector. But our sector is not always first on authoritarians’ agendas. The US is a case in point for that.

And even where control of civil society is a major element of authoritarian governments’ agendas, as in China, Myanmar, Thailand, Vietnam, Hong Kong and many other parts of the region, sometimes, alongside that increasing control, there exists a vibrant nonprofit sector, even if often fairly limited in what it can do – China is perhaps the best example of that.

So if I say that authoritarianism and authoritarianism is the key danger our sector faces, then what am I talking about? How do authoritarians and states with authoritarian tendencies manifest restriction, constraint, control?

Let me count the ways.

In India, of course, we always come back to restrictions on external funding. The FCRA, Foreign Contribution Regulation Act. Perhaps some of you have heard of it. My good friend and longtime colleague Sanjay Agarwal of AccountAid has literally written the book on this method of constraining and controlling Indian civil society and philanthropy.³  These foreign funding issues are problems in many countries throughout the region – Pakistan, Bangladesh, Thailand, Myanmar, Vietnam, now Hong Kong, China, of course, and many others.

But at the same time, as everyone here knows, we must not make the mistake of equating attempts at authoritarian control of civil society with the problem of foreign funding. In fact, I think that sometimes we over-emphasize the foreign funding control issues, when FCRA and other such constraints in other countries are but one part of a quiver of weapons intended to limit and constrain and mold and direct civil society.⁴

Some of the others include:

• Increasing restraints on formation and permissible purposes.
• Increasing reporting requirements to local, state-level, and national governments that can deeply constrain what philanthropic and civil society entities are able to do.
• Increasing, sometimes overwhelming supervision of the work of philanthropic and civil society organizations, including so-called “dual master” arrangements that subject CSOs to multiple overlords, and the increasing role of sectoral ministries and state-level departments to constrain and control the work of CSOs in their territories and fields.
• Increasing restraints and prohibitions on the life and work of unregistered associational entities – equating anything that is not formally registered with being illegal.
• The rocky path of nonprofit self-regulation – sometimes weak and of no threat to the state; but often coopted by the state as another means of state control.
• Increasing regulation of the economic activities of CSOs.
• The rise of social enterprise regulation – which is, in some countries in the region, lauded as a boon to the rise of social enterprise itself, but can also be – sometimes simultaneously – an attempt by national and state-level governments to control this rapidly growing part of our sector.

And we even see academics and policy researchers downplaying these increasingly restrictive controls on civil society.

I think of the recent proposal by the highly respected leader of a very well-known nonprofit and philanthropy research center in Hong Kong, supporting the notion that Hong Kong is poised to be a regional hub for philanthropy in Asia.⁵

In 2022. When the civil society sector in Hong Kong is under an onslaught and attack from authoritarian leaders in Hong Kong and Beijing like, literally, never before. When civil society leaders are going to prison, organizations are being shut down or shutting themselves down, and civil society activists are fleeing. A truly remarkable idea given the ongoing destruction of civil society in Hong Kong.

These are just a few examples. We do not doubt the right and duty of government to appropriately regulate philanthropy and civil society, but increasingly we see governments and would-be authoritarians moving beyond appropriate and facilitative regulation to increasingly firm control.

But I do not want to paint only a negative picture. Despite these increasingly authoritarian trends, we do continue to see a growth in philanthropic and civil society activity. And even in the most authoritarian and restrictive environments, some civil society and philanthropic activity can continue to exist and make progress. That is what keeps many civil society and philanthropy activists hard at work, and what keeps those of us who follow their work optimistic in many cases.

I very much appreciate the opportunity to speak informally with you today, and thank all of you, and the Centre for Social Impact and Philanthropy, for having me with you today.

Mark Sidel is Doyle-Bascom Professor of Law and Public Affairs at the University of Wisconsin-Madison and a specialist in the law and policy affecting nonprofit and philanthropic organizations in Asia and the United States. He serves as consultant for Asia at the International Center for Not-for-Profit Law (ICNL)

The views expressed here are entirely of the writer and do not reflect those of the university.

1 Mark Sidel and David Moore, The Law Affecting Civil Society in Asia: Developments and Challenges for  Nonprofit and Civil Society Organizations, https://www.icnl.org/wp-content/uploads/Asia-Legal-Environment Report-Summary-vf.pdf. 

2 There is a large literature on all these developments in China. For one comprehensive view, see Shawn Shieh,  Remaking China’s Civil Society in the Xi Jinping Era, ChinaFile, August 2, 2018, at https://www.chinafile.com/  reporting-opinion/viewpoint/remaking-chinas-civil-society-xi-jinping-era.

3 Many commentators in India and beyond have discussed the pernicious intent and effects of the FCRA. Sri  Agarwal’s superb book is Sanjay Agarwal, AccountAble Handbook FCRA 2010: Context, Concepts and Practice,  2021 Edition (AccountAid 2021), at https://fcra2010.in/.

4 For an excellent and broader take on these issues, see Ingrid Srinath, COVID-19, Corporatisation and Closing  Space: The Triple Threat to Civil Society in India, Lecture and Working Paper for the London School of Economics,  March 2022, at https://www.lse.ac.uk/international-development/Assets/Documents/PDFs/Working Papers/WP206.pdf.

5 Ruth A. Shapiro, Hong Kong is poised to be Asia’s regional philanthropy hub, South China Morning Post,  February 5, 2022, at https://www.scmp.com/comment/opinion/article/3165806/hong-kong-poised-be-asias-regional philanthropy-hub.