Thailand Law Source: NGO Regualtion in East and Southeast Asia: A Comparative Perspective

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Asia-Pacific Philanthropy Consortium (APPC), Giving and Fund Raising in Asia, (Manila: 2002).

Asia-Pacific Philanthropy Consortium (APPC), Overviews of the Third Sector Legal Environment: Incorporation and Taxation for the following countries: China, South Korea, and Thailand; found on the APPC website:
http://www.asianphilanthropy.org/countries/index.cfm.

Barnett F. Baron, THE LEGAL FRAMEWORK FOR CIVIL SOCIETY IN EAST AND SOUTHEAST ASIA, Opening Remarks for a workshop held at the Catholic University of America, Washington, April 12, 2002; published in 4 Int'l J. Not-for-Profit L. 4 (June 2002), at http://www.icnl.org/journal/vol4iss4/ar_baron1.htm.

Chen Guangyao, China's Nongovernmental Organizations: Status, Government Policies, and Prospects for Further Development, 3 Int'l J. Not-for-Profit L. 3 (June 2001), at http://www.icnl.org/journal/vol3iss3/ar_guangyao.htm.

Joyce Yen Feng, "Efforts on improving the NGO/NPO legal environment in Taiwan," a paper presented at the Workshop on The Legal Framework for Civil Society in East and Southeast Asia, April 12, 2002.

Leon E. Irish and Karla W. Simon, Economic Growth, Transition, and Reform in China: The Role of a Legal and Regulatory Enabling Environment for NGOs, in The Non-profit Sector and Development, Zhao Liqing and Carolyn Iyoya Irving, eds. (Hong Kong: 2001)

Josephine Lu, The Non-profit Sector in Taiwan, from the Himalaya Foundation website,
http://www.tpic.org.tw/NPOInfo/index1-3.asp.

Robert Pekkanen and Karla Simon, The Legal Framework for Voluntary and Not-for-Profit Activity in Japan in The Voluntary and Nonprofit Sector in Japan, Stephen Osborne, ed. (London: Routledge, forthcoming 2002).

Thomas Silk, ed., Philanthropy and Law in Asia: A Comparative Study of the Nonprofit Legal System in Ten Asia Pacific Societies (San Francisco: Jossey-Bass 1998).

Fely I. Soledad, The Philippine Council for NGO Certification, a paper presented at the Workshop on The Legal Framework for Civil Society in East and Southeast Asia, April 12, 2002.

Appendix 1.
Report:
Conference on Legal Enabling Environment for NPOs in East and Southeast Asia
by Karla W. Simon

In April 2002, a conference was held at the Catholic University of America to discuss the legal enabling environment for NPOs in East and Southeast Asia. It was co-sponsored by CUA, the Asia Foundation, and ICNL and attended by scholars and activists from the DC area. Speakers included Dr. Barnett Baron, Executive Vice President of the Asia Foundation, Dr. Leon Irish, President Emeritus of ICNL, and Prof. Zhao Liqing, Visiting Scholar at the Catholic University of America. Dr. Joyce Yen Feng of National Taiwan University sent a paper, but she could not attend.

In the discussion following the presentations, the conference participants elaborated on the following issues:

1.

Whether other countries in the region should adopt participation legislation, such as that in the Philippines? This legislation mandates a role for civil society with respect to the adoption of various policies at the local, regional, and national levels of government. Other countries in the region do not have such legislation and their civil societies are not as strong as civil society in the Philippines.

2.

There is a definite link between granting tax advantages to NPOs and their being willing to register to obtain legal status. The recent legal changes in Japan suggest this close linkage.

3.

While self-regulation is a good idea, will it work as it has been designed in the Philippines? Unfortunately the PCNC (Philippine Council of NGO Certification, which has been established to determine whether organizations are permitted recipients of deductible donations) has only investigated 220 and approved 135 NGOs out of some 60,000 that are eligible for tax deductibility. What the PCNC has done is design a system of elaborate evaluation procedures for the qualification process, which seems to have occasioned the serious delays. In addition, the Philippine Parliament, in a rather ominous retreat from the legislation that created the PCNC, has before it a bill that would eliminate tax deductibility altogether!

4.

Whether it is necessary or beneficial to have legislation for NPOs or whether a simple system of regulations would be sufficient, as in China? Although the Chinese government has been discussing the prospect of legislation, it has not yet produced a draft law. The Vietnamese government, while discussing a draft law, has permitted NPOs to develop under outmoded and very minimal legislation from the 1950's. There was disagreement among the participants about the general principle of whether it is better to have laws enacted by the legislative body as opposed to regulations adopted by the government.

5.

The importance of one regulatory system for NPOs as opposed to several different regimes under which they can become registered and are then regulated. Prof. Feng's paper highlighted this as an important issue under consideration in the debates about legal reform in Taiwan.

6.

Developing new ways to encourage philanthropy in East/Southeast Asia by looking to traditional patterns of giving. The Asia Pacific Philanthropy Consortium has recently published a multi-nation study of these issues in Asia, and it suggests that Asian values have always supported philanthropy, but not always along the lines that are traditional in the West. See Investing in Ourselves: Giving and Fund Raising in Asia, published by APPC in 2002.

7.

The paramount importance of tax advantages in promoting philanthropy.

8.

The importance of having a legal framework that encourages the role of advocacy organizations because of their significance in modern civil society (see also #10). Although E/SEA governments have traditionally been wary of or even hostile to advocacy organizations, the group at the conference was clear about the need for a change of attitude in this regard throughout the region.

9.

The importance of impartial enforcement of legislation. Although good laws may be written, they are only as good as their enforcement. There is a strong need in the region for better training of government officials, both as to their general duties and as to their awareness of the roles that NPOs should play in society.

10.

The role of NPOs in policing government corruption should be emphasized.

11.

NPOs should be encouraged to develop codes of conduct in all of the countries of the region. There does not seem to be much of a movement toward the adoption of such codes by national NPO representative organizations. In fact, in many countries, the NPO representative organizations are fairly weak, which limits their capacity to act as sector representatives when lobbying for legal change is necessary.

12.

NPOs in the region should become more convinced of the benefits of transparency in their operations. Because of the suspicion of governments, many NPOs in many countries (e.g., Indonesia) have not seen transparency as an objective. This has in turn led to corruption within the sector and a distrust of the sector not only by the government but also by the public.

Appendix 2 Categories of Not-for-Profit Legal Entities in Japan

Entity

Governing Law, Date

Purpose of the entity

Establishment Body

Standard for Estab.

# of entities

Association shadan houjin Civil Code, Article 34 (1897) Associations with the objective of worship, religion, charity, education, arts and crafts, and other activities for public interest, and not for profit Competent Gov't Agency Permission kyoka
11,867

Foundationzaidan houjin Civil Code, Article 34 (1897) Foundations with the objective of worship, religion, charity, education, arts and crafts, and other activities for public interest, and not for profit Competent Gov't Agency Permission kyoka
12, 814

Social Welfare Corporations shakai fukushi houjin Social Welfare Business Law, Article 22 (1951) Corporations established under the law with the objective of social welfare businesses Ministry of Health and Welfare Approval ninka
13,307

Educational Corporation Private School Law, Article 3 (1949) Corporations established under the law for the purpose of establishing a private school Minister of Education Approval ninka
11,765

Religious Corporation shyuukyou houjin Religious Corporation Law, Article 4 (1951) Corporations having the purpose of evangelizing, conducting religious rites, and educating and nurturing believers Minister of Education Certification ninshou
183,894

Medical Corporation Medical Law, Article 39 (1950) Associations or foundations whose objectives are to establish a hospital or clinic or a facility for the health and welfare for the elderly Ministry of Health and Welfare Approval ninka
14,048

Public Charitable Trust Trust Law, Article 66 (1923-applied 1977) Trusts with the objectives of worship, religion, charity, education, arts and crafts, and other purposes in the public interest Minister of Competent Gov't Agency Permission kyoka
433

Approved Community-Based Organization Local Autonomy Law 260 (2) (1991) Organizations formed by residents of a community Mayor or town or village head-person Notification todokede
841

Special Nonprofit Activities Legal Persons NPO houjin Special Nonprofit Activities Promotion Law (1998) Nonprofit entities whose activities include those for promotion of health, welfare, education, community development, arts, culture, sports, disaster relief, international cooperation, administration of organizations engaging in these activities, etc. (11 examples) Economic Planning Agency Certification ninshou
1,012

_______________________________________________________________

1.	Whether other countries in the region should adopt participation legislation, such as that in the Philippines? This legislation mandates a role for civil society with respect to the adoption of various policies at the local, regional, and national levels of government. Other countries in the region do not have such legislation and their civil societies are not as strong as civil society in the Philippines.
2.	There is a definite link between granting tax advantages to NPOs and their being willing to register to obtain legal status. The recent legal changes in Japan suggest this close linkage.
3.	While self-regulation is a good idea, will it work as it has been designed in the Philippines? Unfortunately the PCNC (Philippine Council of NGO Certification, which has been established to determine whether organizations are permitted recipients of deductible donations) has only investigated 220 and approved 135 NGOs out of some 60,000 that are eligible for tax deductibility. What the PCNC has done is design a system of elaborate evaluation procedures for the qualification process, which seems to have occasioned the serious delays. In addition, the Philippine Parliament, in a rather ominous retreat from the legislation that created the PCNC, has before it a bill that would eliminate tax deductibility altogether!
4.	Whether it is necessary or beneficial to have legislation for NPOs or whether a simple system of regulations would be sufficient, as in China? Although the Chinese government has been discussing the prospect of legislation, it has not yet produced a draft law. The Vietnamese government, while discussing a draft law, has permitted NPOs to develop under outmoded and very minimal legislation from the 1950's. There was disagreement among the participants about the general principle of whether it is better to have laws enacted by the legislative body as opposed to regulations adopted by the government.
5.	The importance of one regulatory system for NPOs as opposed to several different regimes under which they can become registered and are then regulated. Prof. Feng's paper highlighted this as an important issue under consideration in the debates about legal reform in Taiwan.
6.	Developing new ways to encourage philanthropy in East/Southeast Asia by looking to traditional patterns of giving. The Asia Pacific Philanthropy Consortium has recently published a multi-nation study of these issues in Asia, and it suggests that Asian values have always supported philanthropy, but not always along the lines that are traditional in the West. See Investing in Ourselves: Giving and Fund Raising in Asia, published by APPC in 2002.
7.	The paramount importance of tax advantages in promoting philanthropy.
8.	The importance of having a legal framework that encourages the role of advocacy organizations because of their significance in modern civil society (see also #10). Although E/SEA governments have traditionally been wary of or even hostile to advocacy organizations, the group at the conference was clear about the need for a change of attitude in this regard throughout the region.
9.	The importance of impartial enforcement of legislation. Although good laws may be written, they are only as good as their enforcement. There is a strong need in the region for better training of government officials, both as to their general duties and as to their awareness of the roles that NPOs should play in society.
10.	The role of NPOs in policing government corruption should be emphasized.
11.	NPOs should be encouraged to develop codes of conduct in all of the countries of the region. There does not seem to be much of a movement toward the adoption of such codes by national NPO representative organizations. In fact, in many countries, the NPO representative organizations are fairly weak, which limits their capacity to act as sector representatives when lobbying for legal change is necessary.
12.	NPOs in the region should become more convinced of the benefits of transparency in their operations. Because of the suspicion of governments, many NPOs in many countries (e.g., Indonesia) have not seen transparency as an objective. This has in turn led to corruption within the sector and a distrust of the sector not only by the government but also by the public.

Appendix 2 Categories of Not-for-Profit Legal Entities in Japan
Entity	Governing Law, Date	Purpose of the entity	Establishment Body	Standard for Estab.	# of entities
Association shadan houjin	Civil Code, Article 34 (1897)	Associations with the objective of worship, religion, charity, education, arts and crafts, and other activities for public interest, and not for profit	Competent Gov't Agency	Permission kyoka	11,867
Foundationzaidan houjin	Civil Code, Article 34 (1897)	Foundations with the objective of worship, religion, charity, education, arts and crafts, and other activities for public interest, and not for profit	Competent Gov't Agency	Permission kyoka	12, 814
Social Welfare Corporations shakai fukushi houjin	Social Welfare Business Law, Article 22 (1951)	Corporations established under the law with the objective of social welfare businesses	Ministry of Health and Welfare	Approval ninka	13,307
Educational Corporation	Private School Law, Article 3 (1949)	Corporations established under the law for the purpose of establishing a private school	Minister of Education	Approval ninka	11,765
Religious Corporation shyuukyou houjin	Religious Corporation Law, Article 4 (1951)	Corporations having the purpose of evangelizing, conducting religious rites, and educating and nurturing believers	Minister of Education	Certification ninshou	183,894
Medical Corporation	Medical Law, Article 39 (1950)	Associations or foundations whose objectives are to establish a hospital or clinic or a facility for the health and welfare for the elderly	Ministry of Health and Welfare	Approval ninka	14,048
Public Charitable Trust	Trust Law, Article 66 (1923-applied 1977)	Trusts with the objectives of worship, religion, charity, education, arts and crafts, and other purposes in the public interest	Minister of Competent Gov't Agency	Permission kyoka	433
Approved Community-Based Organization	Local Autonomy Law 260 (2) (1991)	Organizations formed by residents of a community	Mayor or town or village head-person	Notification todokede	841
Special Nonprofit Activities Legal Persons NPO houjin	Special Nonprofit Activities Promotion Law (1998)	Nonprofit entities whose activities include those for promotion of health, welfare, education, community development, arts, culture, sports, disaster relief, international cooperation, administration of organizations engaging in these activities, etc. (11 examples)	Economic Planning Agency	Certification ninshou	1,012