Chinaâ€™s Constitutional and Legal Framework for Autonomy

China’s Constitutional and Legal Framework for Autonomy – Limitations and Possibilities for Tibetan NegotiationsChina’s Constitutional and Legal Framework for Autonomy – Limitations and Possibilities for Tibetan Negotiations
Yash Ghai, Kelley Loper and Sophia Woodman
Table of Contents I. Introduction II. History of Autonomy Policy in China III. The Current Tibetan Position IV. The Current Legal Framework V. The Operation of Nationality Regional Autonomy
V.i The Role of the Chinese Communist Party V.ii Local and Autonomous Legislative powers V.iii Regulations and Policy on Religion in Autonomous Regions V.iv Language V.v Opportunities in Spread of Competitive Elections
VI. Article 31 and the Hong Kong Example VII. Conclusions and Possibilities VIII. Bibliography
Appendices (all except III.c and III.d are printed separately)
I. National Laws and Regulations
a. Law on Legislation of the PRC, 2000 b. Law on National Regional Autonomy of the PRC, 2001 c. Regulations on Religious Affairs, 2004
II. Local Regulations TAR Regulations on Legislation
III. Other a. CCP Constitution, 2002 b. Human Rights Watch, State Control of Religion in China, 1997
(excerpts) c. Opportunities in Spread of Competitive Elections (expanded version) d. Background to the Enactment of Article 31 of the PRC Constitution
PRC Framework for Autonomy Ghai, Loper and Woodman
I. Introduction The purpose of this paper is to discuss the legal regime regulating nationalities’ regional autonomy (NRA) in China as well as current Chinese government policy and practice toward nationality autonomous areas. This regime is analyzed with specific reference to Tibet and the legal and practical limitations and possibilities for the achievement of Tibetan aspirations for autonomy. It examines constitutional options for autonomy under the Chinese Constitution and legislation, particularly the self-government of nationality (minority) autonomous areas (section vi of chapter three of the Constitution) and special administrative regions under Article 31 of the Constitution. It also describes briefly the general system of local government (at the provincial and lower administrative levels) which provides the underlying foundations of minority autonomy. The paper examines the practical implementation and operation of minority autonomy and special administrative regions and explores how far the practice differs from the law. In particular, special attention is paid to the role of the Chinese Communist Party (CCP) and its officials which has a very significant impact on how state powers are actually exercised. The current weak status of the rule of law in China, the lack of a democratic political system, as well as state priorities emphasizing unity, sovereignty, CCP control, and economic development create considerable obstacles for realizing genuine autonomy within the existing system (Ghai 1999: chap. 4 and Ghai 2000a: chap. 4).
These limitations are reflected in the language of the laws and regulations themselves as well as breaches of the legal provisions and the functioning of the system in practice. The constraints are also inextricably linked with the ultimate objectives of the NRA system which have included securing the cooperation of border regions; the eventual political and cultural integration of these regions and ensuring stability. The recent process of legalization of autonomy policy has been an attempt to lend legitimacy and predictability to government policies rather than to make significant changes in relations between minority areas and the central government (Potter 2005: 3). Some of the constraints that apply to minority autonomy also apply to Hong Kong and Macao as special administrative regions; they have a limited life span, of 50 years.
A review of several recent studies on Sino-Tibetan issues reveals a general consensus that significant differences still exist between the Chinese and Tibetan positions and prospects of meaningful dialogue in the short term are not too promising. There seems to be agreement that the limitations of the NRA framework – and the Chinese government’s insistence on the continuation of this system – render Tibetan hopes for genuine autonomy improbable under current conditions. Some scholars have argued that the regional autonomy system is adequate – and even generous - on paper, but inadequate in practice (Mackerras, 2005, 24). Others have argued that negotiating the future of Tibet within the existing system is probably a more realistic position than a rejection of the legal and political framework which could effectively end the current impetus toward negotiations. Sautman observes that China has not taken the Dalai Lama’s call for ‘genuine autonomy’ seriously in part because Beijing believes he wants to ‘completely negate the value of the existing system of ethnic regional autonomy in Tibet’ (Sautman, 2002, 82). Tibetan acknowledgement and general acceptance of the system could serve to strengthen trust between the two sides.
It is not the intention of this paper to suggest that future Tibetan autonomy must be negotiated and accommodated within existing frameworks. In fact our conclusion is that neither the minority autonomy nor the Article 31 framework is adequate for the accommodation of the aspirations and specific needs of Tibetans, and that it would be desirable to negotiate on the basis of the unique situation of Tibet, the specificity of its historical connections with China, and its distinctive religious and cultural traditions.
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Quite apart from minority issues, Chinese scholars and policy makers have started to discuss constitutional reforms to deal with the changed political, economic and social changes of the last two decades, in which stronger judicial institutions, greater spatial distribution of power, and increasing democratisation feature prominently. It would also be an advantage to emphasize the benefits of resolution and the potential costs of delaying negotiations (Rabgey and Sharlho, 28) and reassuring Beijing that Tibetan proposals pose no threat to the sovereignty and integrity of the Chinese State. Precedents can be drawn from other countries which have attempted to balance national and local concerns through a variety of forms of autonomy.
Section II examines the Chinese approach to nationality issues in the past placing the current analysis into its historical context and revealing long-standing obstacles and principles that continue to affect China’s minority strategy. Section III briefly reviews some of the key Tibetan aspirations and the elements of ‘genuine autonomy’. Section IV evaluates the legal provisions establishing the NRA system including the 1982 PRC Constitution and the Law on Regional National Autonomy (LNRA) in terms of their limitations. It also discusses law, policy and practice related to specific issues of concern such as the implementation of autonomy rights at the regional level; language rights; the extent of local legislative powers; and religion. Section V looks at a range of issues relating to the practical exercise of autonomy, including CCP influence, controls on religion, the question of language, local and autonomous legislative powers and opportunities for greater representation in the current electoral arrangements. Section VI examines briefly the nature of autonomy under Article 31, pointing to the greater flexibility and self- government—and room for negotiations—than if negotiations were confined to the regime of minority autonomy. Section VII concludes with some thoughts on trends that may create future opportunities. A bibliography is presented in Section VIII. II. History of autonomy policy in China Assimilation approach
China’s policy toward minority groups seems consistently aimed at gradually assimilating minorities and integrating border regions more thoroughly into a unified multi-ethnic state. As such, minority and autonomy arrangements have often been conceived as temporary, although possibly long- term, transitional measures addressing political and social realities but moving toward ensuring state interests and control (Smith: 2). This approach reflects both Marxist-Leninist theory and imperial Chinese culture (Smith: 2). Even the Hong Kong and Macau special administrative regions – which are not minority regimes - have been established as temporary 50-year measures necessary prior to eventual, full integration.
Placed in the context of gradual assimilation, earlier statements of policy with apparently greater flexibility than the current system1 may not be successfully relied upon when arguing for an expansion of autonomy powers. Current realities and priorities of state control and integration will likely take precedence over real autonomy. The history of Chinese policy on national minorities has been characterised by extreme pragmatism, not principle.
1 For example, promises of independence based on Lenin’s version of self-determination, the Seventeen Point Agreement, more flexible measures in the 1952 General Programme, and the liberal attitudes of the 1980s.
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Policy from the 1930s to the 1990s
Although the CCP, under the influence of the Comintern in 1931, first accepted Lenin’s more radical definition of self-determination for ethnic groups in China and assured a right to independence for minority areas, they subsequently retracted this promise by 1935 – as well as notions of federalism according to the Soviet model. Instead the CCP offered a degree of autonomy within the unified state structure.
The CCP’s understanding of nationality (minzu 2 ) derives from Stalin’s 1913 definition of nationality: a ‘historically constituted, stable community of people, formed on the basis of a common language, territory, economic life, and psychological make-up manifested in a common culture’ (Mackerras, 2003: 2).
After the founding of the PRC, the Chinese version of nationality regional autonomy was articulated, first in the 1949 Common Programme of the Chinese Peoples Political Consultative Committee (CPPCC), then the 1952 General Programme for the Implementation of Regional Autonomy for Minorities, and the 1954 Constitution. Many of the key principles in these documents still inform the current system. The General Programme implemented NRA and provided for the establishment of nationality autonomous areas but unlike the current provisions, it allowed the nationality autonomous areas to make reforms with no mention of the need for central government approval (Article 18, Binh G. Phan, 1996, 91). During the drafting of the 1954 Constitution, there was even debate over whether the autonomous powers of the NRA areas needed to comply with the Constitution and other laws (Cai, 2004: 391).
One key effect of these policies, however, was to divide minority areas such as Xinjiang and Tibet into several political entities, therefore diffusing their political power and securing the principle of central control or democratic centralism (Smith: 11). A purpose of this division, which also holds true today, was ensuring security along China’s border regions.
The 1951 Seventeen Point Agreement between the Chinese and Tibetans granted the central Tibetan area now known as the Tibet Autonomous Region (TAR) considerably more autonomy than offered by the NRA system. It guaranteed that the ‘Central Authorities would not alter the existing political system in Tibet’, allowed religious freedoms, prohibited ‘compulsion on the part of the Central Authorities’ with regard to reforms, gave the Central government control over foreign affairs, and established a Chinese military base in Tibet. This agreement was nullified after the 1959 uprising and was denounced by the Dalai Lama after he fled into exile. The TAR region was eventually designated a nationality autonomous region in 1965. Other Tibetan regions, Amdo and eastern Kham, had officially been designated nationality autonomous areas – at the sub-regional level - in the 1950s.
The upheaval and radical policies of the Cultural Revolution (1966-1976) saw a reversal of autonomy policies as well as extensive cultural destruction and assimilation, particularly in Tibet. The 1980s saw attempts to rectify the damage caused by the hard-line, class-struggle approach of the Cultural Revolution. Yang Jingren promoted Party leadership by minorities, reflecting a more relaxed attitude toward minority policy: ‘The first in command within the Party organizations must also gradually be drawn from the minorities. We must rigorously create the conditions necessary to see this actualized.’ (quoted in Kaup, 2000, p 113). This promise has not come to fruition and Party leadership in Tibet is still in the hands of Han Chinese cadres.
The drafting of the 1982 Constitution was a turning point and contained more extensive provisions related to nationality regional autonomy than in previous legal or policy documents. The
2 Now translated into English in official Chinese documents as ‘ethnicity’.
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promulgation of the 1984 Law on Nationality Regional Autonomy (LRNA) implemented and detailed these provisions.
Following unrest in a number of minority areas—particularly Tibet and Xinjiang—the 1990s saw a tougher approach, with a focus on suppressing separatism and fostering economic development as a solution to ethnic unrest. There has been some recognition in recent years, however, that heavy economic subsidies in Tibet and the imposition of state development plans may not only have failed to resolve ethnic tensions but have actually exacerbated them, thus presenting a window of opportunity for the emergence of new policy ideas. For example, in the face of worldwide ethnic conflicts, some Chinese leaders have apparently recognized that the Tibetan problem has an ‘ethnic’ nature requiring an ethnic analysis beyond the current economic approaches. Zhu Rongji commented to a Canadian reporter in 1999 that
[t]he Kosovo question is an ethnic problem, which is of course an internal matter. Questions like this exist in many countries. You in Canada have the question of Quebec; the UK has the Northern Ireland question; and for China, there is the question of Tibet. (quoted in Sautman, 2002).
Sautman argues that ‘[r]ecognition by PRC leaders that Tibet is a conflict like Kosovo, Quebec and Northern Ireland is a sure sign that they feel added pressure to resolve the Tibet Question’ (Sautman 2002). On the other hand, Zhu also emphasizes the ‘internal’ nature of the problem, reinforcing Chinese ideas of sovereignty and fears of international interference. III. The Current Tibetan Position
Before considering the current legal and political framework governing NRA, this section will
briefly review the Tibetan position and its key claims. While, the history of Sino-Tibetan negotiations since 1979 is thoroughly discussed by Rabgey and Sharlho in a recent study and will not be repeated here, a summary of the main aspirations is necessary as a reference point for the subsequent analysis of the limitations and possibilities for their realization within the current legal framework.
Overall, the Tibetans have repeatedly called for ‘genuine autonomy’ for Tibetan areas within PRC jurisdiction and the unification of Tibetan communities. Genuine autonomy may include preservation of Tibetan culture and religion as well as the environment, including control over land use and economic development. It may also consist of a multi-party democratic system, a limitation on Han migration into Tibetan areas and on the presence of Chinese troops.
Elements of Tibetan ‘genuine autonomy’ may include: • Multi-party democracy or some form of expanded democratic rights or opting out of Party
membership requirements for certain posts. • Autonomy to develop and practice the Tibetan language, culture and religion • Preservation of the environment and control of use of land • Tibet as a Zone of Peace, with no military troops. • Ability to join international religious associations, etc. • Restriction of future Han population movements • Development issues – allowing smaller projects to be dealt with locally while larger projects
would involve national participation. The detrimental effects of national development plans on the preservation of Tibetan culture and the environment must be considered carefully.
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• Courts to enforce autonomous law and to settle disputes, particularly those which touch on Tibetan culture and customary practices.
• Opt-out clauses determining which national laws and regulations would or would not be applied. This demand may be possible within article 115 of the Constitution, which will be discussed in the following section.
IV. Current Legal Framework
The current systems of autonomy are established by the 1982 Constitution—within the broad contours of the nature of the Chinese state. China is defined as a ‘unitary multinational state’ under the command of the Communist Party and the guidance of Marxism-Leninism and Mao Zedong Thought. Its aim is, through democratic centralism and dictatorship, to further socialist policies. On the nationalities’ question, ‘socialist relations of equality, unity and mutual assistance among the nationalities’ will be strengthened. It is necessary, to safeguard the unity of the nationalities, to combat big-nation (mainly Han) chauvinism and local national chauvinism. ‘Han chauvinism’ refers to Han arrogance towards and contempt for minorities, rooted in the Confucian perception of them as ‘barbarians’, and ‘local chauvinism’ refers to minorities’ assertion of self-determination. Autonomy is the centrepiece of China’s ethnic policy, both to hold its minorities together and to expand its jurisdiction through the re-unification of Greater China. However, coupled with a weak legal system, the preoccupation with sovereignty and centralisation of power fails to provide an effective guarantee of the distribution or sharing of power, reducing ‘autonomy’ purely to an administrative device. Among the people, particularly the Han, there is as strong a feeling of identity based on ethnicity as on territory. Pye (1975: 488) says that, for ‘reasons which spring deep from within the Chinese spirit and which have been reinforced during the era of Western encroachment and of the ‘unequal treaties’, the Han Chinese have developed a powerful sense of their territorial identity, which, some might say, overrides their sense of cultural identity’. Therefore it is within this strong sense of territory and the Leninist obsession with control, that autonomy policies and provisions of the 1982 Constitution should be understood and analysed.
The Constitution recognises two types of autonomy. The first is regional autonomy for minority nationalities in areas where they ‘live in concentrated communities’ (Article 4). In these areas, ‘organs of self-government are established to exercise the power of autonomy’. The other system is that established under Article 31, which gives the NPC broad authority to establish special administrative regions with their own ‘systems’ ‘in the light of specific conditions’. The Constitution provides no further details and hence vests the NPC with much greater flexibility and discretion than for the first type of autonomy. It also envisages, if necessary, a process of negotiations before the constitutional provisions of a special administrative region are established. In this section, we examine the first type of autonomy.
Article 4 sets out China’s policy on ethnic (‘nationalities’) relations. It says that all nationalities are equal, prohibits discrimination against any of them and emphasises the unity of all nationalities (‘any act which undermines the unity of the nationalities or instigates division is prohibited’; ‘All national autonomous areas are integral part of the People’s Republic of China’). It commits the state to assist the economic and cultural development of minority nationalities. It also gives all nationalities the freedom to use and develop their spoken and written languages and to preserve or reform their own ‘folkways and customs’.
Section v of chapter 3 of the Constitution outlines the structure and powers of local government. This essentially mirrors the national-level arrangements, in that local people’s congresses (LPCs) are supposed to be the principal organs of state power at that level (Article 96), with local governments being
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appointed by, and responsible to, them (Article 101). In addition, LPCs at provincial level3 have the power to enact local regulations (Article 100).4 However, there is a clear tension between accountability of local government to their respective LPCs and to the higher level state administration; Article 110 lists both responsibilities, and does not indicate how they are to be balanced. But the concluding sentence reflects the reality of governance in the PRC: ‘Local people’s governments…. are state administrative organs under the unified leadership of the State Council and are subordinate to it’. LPCs at the county (rural) and district (urban) level are directly elected, while the higher level people’s congresses are indirectly elected by those below them (Article 97). LPCs are responsible for ensuring that the Constitution, laws and administrative regulations are followed in their jurisdiction, and they also supervise local government policies and budgets (Article 99). As at national level, LPCs meet infrequently (the Organic Law on Local People’s Congresses and People’s Governments requires meetings ‘at least once a year’ [Article 11]), and much of their day-to-day work is performed by their standing committees, which can exercise most of the powers of the full congresses (Article 104).
The section on local government also provides for directly elected citizens committees to play a substantial role in self-government at the lowest level of administration (Article 111). These residents’ committees in urban areas and the villagers’ committees in rural areas are not envisaged as government offices. More information on the these bodies is provided in the section of this paper on democratisation, below.
The general principle of nationalities autonomy is elaborated in section vi of chapter three (‘The Organs of Self-Government of National Autonomous Areas’). An autonomous area for a minority may be established if all the inhabitants belong to the minority; if there is another minority which is concentrated in a prefecture or county, that area might form the basis of autonomy for it; and if there are several minorities, a multinational autonomous area might be set up. Article 112 prescribes as the organs of self-government people’s congresses and people’s government at the regional, prefectural and county levels. If a specified minority exercises autonomy, other minorities should have ‘appropriate’ representation. Members of minorities exercising autonomy should be appointed as chair or vice-chairs of the relevant people’s congress (Article 113), while the chair of the autonomous unit must be a citizen of the minority exercising autonomy (Article 114). The powers of the organs of self-government are two- fold: the first set of powers are those that belong to similar units of local government all over the country (which are set out in section v); and the second are powers ‘of autonomy within the limits of their authority as prescribed by the Constitution, the Law of the People’s Republic of China on Regional National Authority and other laws’ (Article 115). Autonomous areas have the authority to adapt ‘the laws and policies of the state in the light of the existing local situation’ (Article 115).
The powers of people’s congresses in autonomous areas include the making of ‘autonomy regulations and other separate regulations in the light of the political, economic and cultural characteristics of the nationality or nationalities in the areas concerned’ (Article 116). However, these regulations require higher level approval. If they are passed by an autonomous region, they have to be submitted to the Standing Committee of the National People’s Congress (NPCSC) for approval. If they are passed by lower level congresses, they are submitted to the congress of the province or region (the term ‘region’ is used for provinces which have autonomy) for approval; thereafter they are sent to the NPCSC for the ‘record’ (this wording may suggest that the NPCSC has no further responsibility, but it has a general power to annul local regulations ‘that contravene the Constitution, the law or the administrative rules and regulations’, Article 67(8)). Autonomous areas may administer the finances
3 This includes the five autonomous regions and certain cities ‘directly under the State Council’. 4 These powers are described in detail below in the section of this paper on local legislative powers.
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allocated to them under the state finance system (Article 117) and organise economic development ‘under the guidance of state plans’ (Article 118). They have greater powers to administer educational, scientific, cultural, public health and physical culture affairs, ‘protect and sift through the cultural heritage of the nationalities and work for a vigorous development of their cultures’ (Article 119). They may organise local law and order and security, ‘in accordance with the approval of the State Council’ (Article 120). They may employ local languages ‘in common use’ in the locality for the work of the organs of self- government (Article 121). Finally, the state should help them in economic and cultural development and in training a ‘large number’ of cadres and specialised personnel and skilled workers of various professions and trades’ (Article 122) and take due account of local interests when ‘exploiting natural resources and building enterprises in the national autonomous areas’ (Article 118).
The Constitution also provides for the representation of minorities at the national level; they must be represented at the ‘appropriate level’ in the NPC and NPCSC (Articles 59 and 65).
As under Chinese law, the Constitution is not binding by itself (see below), the effective regime of minority autonomy is to be found in the Law on Regional National Autonomy which was passed in 1984 and significantly amended in 2001. The Law repeats many provisions of the Constitution on the context and parameters of autonomy. These are: (a) autonomy exists within the framework of a unitary state; (b) which itself, along with autonomous areas, is bound by the supremacy of the Chinese Communist Party and governed through democratic centralism (or ‘democratic dictatorship’ of the people); (c) autonomy powers are to be exercised under ‘unified state leadership’ (which numerous provisions explicate); (d) autonomous areas’ highest responsibility is to promote and uphold national unity and to ‘place the interests of the state as a whole above anything else and make positive efforts to fulfil the tasks assigned by the state organs at higher level’ (Article 7); (e) where Han people are a minority, they are entitled to the rights of a minority, including their own autonomous areas (Article 12); (f) most powers granted to autonomous areas are to be exercised in accordance with ‘legal stipulations’ or the ‘law’; and (g) autonomy has to fit within the hierarchy of authority whereby state organs direct, control and supervise the exercise of general and autonomous powers at the local levels.
The 2001 amendments introduced another critical factor into the parameter: market oriented economic development, in accordance with China’s commitment to rapid economic development (at almost any cost) (see Chapter VI). The Law reserves all the major economic powers and the use of economic instruments to the state. It commits autonomous areas, as other parts of the country, to the modernisation of economy (and implicitly to new relations of production). They now have to follow policies of encouraging domestic and foreign investment, promote the mobility of labour and skills, adopt high technology, undertake massive programmes of education and training in technology and management, increase economic production and exports, and build infrastructure. These activities have to be conducted in accordance with state direction and assistance, and conform to state plans. The state is expected to use financial, monetary, technological instruments to speed up economic development in autonomous areas. Special incentives will be provided for the exploitation of natural resources and basic infrastructure. The state would assist to bring in skilled labour from the more developed areas (presumably from predominantly Han areas), and organise training for local people through instruction in institutions outside the autonomous areas and establishing educational institutions in the autonomous areas. The general thrust of this chapter of the Law is the greater integration of autonomous areas in the economy and administration of the country under the direction of central authorities. Autonomous areas are offered little space for their own policies, and the chapter is more in the nature of mandatory provisions, incompatible with the concept of autonomy. Privileging of economic development over other goals shows there is no deep commitment to the culture of nationalities.
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One important positive change made in the 2001 LNRA revisions was that time-limits were set for the centre to respond to requests for policy waivers (Article 20). Prior to this, the centre could effectively veto such requests by failing to respond.
It is now time to draw together the strands of the above analysis of the Constitution and the Autonomy Law to assess the extent of minority autonomy. The following propositions seem to be borne out:
• The primary purpose of autonomy is to strengthen national unity by bringing minority nationalities within the state system. Political arrangements in autonomous areas are vehicles for the enforcement of national laws and policies.
• Autonomy is decided on and imposed by the central authorities (to suit the centre’s purposes) rather than negotiated to reflect the interests of national minorities.
• There is considerable emphasis on local culture and language, but culture seems to be understood in a somewhat restrictive way (‘folkways and customs’). As we shall see there is little freedom of religion, which for so many communities is an essential part, and sometimes the underlying basis, of culture.
• Despite provisions in the Constitution, there is no entrenchment of autonomy, it being based on ordinary law which can be changed at the will of the NPC or even the NPCSC.
• There is no entitlement to autonomy. Article 12 of the Law says that, ‘ Autonomous areas may be established where one or more minority nationalities live in concentrated communities, in the light of local conditions such as the relationship among the various nationalities and the level of economic development, and with due consideration for historical background’. These subjective criteria are linked to the concept of nationality, for which China used, although with no great consistency, Stalin’s fourfold criteria (common language, territory, economic life and culture). A large team of anthropologists were employed to designate groups as nationalities, often vetting claims submitted by groups. Final decisions, often driven by political considerations, are made by the State Council. Even if a group has been accepted as a nationality (there are currently 55 nationalities), the decision to establish an autonomous area is made by the State Council (Article 89(15) of the Constitution).
• Any expectation that there may be of autonomy could be upset if there is massive influx of other communities, diluting the special status of the dominant minority, and leading to rather fragmented and localised autonomy. This has become a particular problem with the movement of Han people into minority areas.
• Autonomous areas fit within the hierarchy of institutions of state, and are subordinated to institutions at the next higher level. Their powers must be exercised within the laws, regulations and directions of central authorities, with extremely limited possibilities to opt out of them or take initiatives of their own (see below). There is no matter or subject on which the autonomy of a nationality cannot be invaded by central authorities.
• Autonomous areas have also to fit within the general framework of local institutions. They have no authority to determine the structure or democratisation of their institutions or modes of representation. Coupled with the lack of the effective protection of the freedoms of religion, expression, association and assembly, there is a significant deficit of self-government.
• There is no independent institution to adjudicate conflicts between central and autonomous authorities on the scope or violations of autonomy.
• Although a considerable role is prescribed for members of the dominant and not so dominant minorities in the local people’s congresses and governments, nothing is said about the
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organisation of the institutions of the Chinese Communist Party with whom real power lies (see below for the role of the CCP).
This analysis is borne out by Chinese government pronouncements on the purpose and scope of
autonomy set out in its periodic White Papers. These essentially reiterate the framework outlined above, and present an optimistic picture of how NRA functions in practice, focussing, for example, on minority representation in the local people’s congresses.
Most recently, Chinese government policy has been articulated in a White Paper on Regional Autonomy for Ethnic Minorities in China, published by the Information Office of the State Council in February 2005 (‘2005 White Paper’), a White Paper on Regional Ethnic Autonomy in Tibet in May 2004 (‘2004 White Paper’) as well as documents published by the State Nationalities Affairs Commission.
The goals of the NRA system are neatly summarized in the following section from the 2005 White Paper:
The implementation of [national regional autonomy] is critical to enhancing the relationship of equality, unity and mutual assistance among different ethnic groups, to upholding national unification, and to accelerating the development of places where regional autonomy is practiced and promoting their progress.
The 2004 White Paper on Tibet presents a rosy view of what has been achieved through this
system in the TAR:
Since regional ethnic autonomy was implemented in 1965 in Tibet, the Tibetan people, in the capacity of masters of the nation and under the leadership of the Central Government, have actively participated in administration of the state and local affairs, fully exercised the rights of self-government bestowed by the Constitution and law, engaged in Tibet's modernization drive, enabled Tibetan society to develop by leaps and bounds, profoundly changed the old situation of poverty and backwardness in Tibet, and greatly enhanced the level of their own material, cultural and political life. The 2004 White Paper on Tibet precludes a Hong Kong-style solution, stating that:
The situation in Tibet is entirely different from that in Hong Kong and Macau. The Hong Kong and Macau issue was a product of imperialist aggression against China; it was an issue of China’s resumption of exercise of its sovereignty … the Central government has always exercised effective sovereign jurisdiction over the region.
It also leaves little further scope for negotiation: [a]ny act aimed at undermining and changing the regional ethnic autonomy in Tibet is in violation of the Constitution and law, and it is unacceptable to the entire Chinese people, including the broad masses of the Tibetan people. It is obvious that the concept of autonomy under the national minority system is something quite
different from the way autonomy is understood in other constitutional systems. Many scholars, including some within China, have been critical of the practice of NRA in the PRC. Yu’s assessment of the legal
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and institutional framework for NRA concludes: ‘It is fair to say that the autonomy granted by the PRC Constitution and Ethnic Regional Autonomy Law to the autonomous areas is limited administrative autonomy.’ (emphasis added, 14)
Potter argues that the provisions of Article 4 of the Constitution connote formal, rather than actual, equality and that the prohibition against discrimination could actually undermine preferential policies aimed at achieving equality of conditions for minority groups (Potter: 10). The Constitution, he writes, justifies ‘state-centric governance and gradual diminution of local ethnic identity’ which supports the view that the Chinese autonomy regime tends to favour gradual assimilation and may imply that autonomy measures are merely temporary solutions until ethnicity is no longer a factor.
Potter also describes several other limitations on autonomy arising from Article 4, including: 1. The requirement that rights and interests of minority nationalities be ‘lawful’ and therefore
subject to provisions on Party supremacy and the state’s role as primary protector of these rights (10). The focus on promoting unity and combating separatism militates against true autonomy (11).
2. The prohibition of discrimination against ‘any’ nationality includes the Han nationality and therefore undercuts preferential policies toward minorities and has been used to prohibit expression critical of Han dominance (10).
3. The requirement that the state help in economic and cultural development imposes state development plans that may contradict or undermine local cultural practices (11).
4. Migration is transforming the environment of minority areas, potentially limiting the use of minority languages and cultural practices. For example, the term ‘compact communities’ of national minorities could imply that autonomy would no longer be granted after significant Han migration into minority areas (11).
5. The ability of nationalities to ‘reform’ their own ways and cultures has led to education and cultural ‘reform’ programmes aimed at assimilation of minorities into mainstream Han culture (Potter: 11). A number of scholars have concentrated on the way the CCP’s development strategies, in
particular the way they have increased economic disparities between border regions and more developed areas, have served to exacerbate ethnic tensions. Sautman argues that the LRNA ‘does not mandate the creation of minority economic opportunities sufficient to overcome the gap …’ (Sautman, 1999: 285). He also cites Zhang Huijun’s claim that ‘the gap creates an “ethnic psychological imbalance” … that can emerge as an unfavorable factor for unity and stability’ (Zhang Huijun 1996: 33 cited in Sautman 1999: 285). The effort to redress such imbalances through the Western Development Strategy is viewed by many as problematic, since its effects in minority regions will likely include greater integration of ethnic minority areas into the Han political and economic system (Becquelin, 2004; Potter: 8; Moneyhon, 2003: 492).
Zhou asserts that the ‘institutional design’ of NRA means that it cannot achieve its stated objectives. In particular, the mere presence of minority officials in autonomous areas’ governments is insufficient for the realization of minority rights. He points out that there are no mechanisms in the PRC’s NRA system that allow for the articulation and representation of the interests of minorities. (Zhou 2005). Other commentators have pointed to the reluctance of governmental departments at provincial or state level to devolve powers to autonomous areas as far as matters of economic interest and attribute to this attitude the absence of any autonomous regulations at the level of national autonomous regions (Zhu Guobin and Yu Lingyun 2000: 54-5). Zhou and Lundberg (2005) show through a study of the regulation of hunting in the Oroquen Autonomous Banner that state officials showed no sensitivity to the concerns and wishes of the people to preserve their culture (where ‘the hunting life style is the primary marker of
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their ethnic identity’: 2). Instead they were more hooked on historic leaps in economic development, and banned hunting to force people to lead a sedentary life style and engage in economic pursuits which completely undermined their traditional practices.
It is thus obvious both from the law and practice that the concept of ‘autonomy’ in China is fundamentally different from the generally accepted understanding of autonomy. In the latter sense, autonomy is a device to allow ethnic, religious, linguistic or cultural communities claiming a distinct identity, whether aggregated in a geographically or not, to exercise direct control over affairs of special interest or concern to them, while allowing the larger entity those powers which cover common interests. The precise forms and structures of autonomy differ from country to country (and in particular forms suitable for territorial autonomy are necessarily different from group autonomy). But the following features are relevant for autonomy:
• Autonomy arrangements which are negotiated in a democratic and participatory way are more likely to succeed than those which are imposed.
• There is a clear division of powers between the central and autonomous authorities (even if there are areas of concurrent powers)
• Institutions at the autonomous level must be representative of the autonomous community (to give moral and political strength to autonomous government)
• The broader, national system must also be democratic and pluralist • The autonomous area must have adequate financial resources and administrative capacity • Autonomy arrangements must be legally guaranteed and constitutionally entrenched, not liable to
be changed by the unilateral decision of central authorities • There must be some mechanism for consultations between autonomous and central authorities on
matters of common interest and to resolve disputes • There must be an independent institution (preferably an independent court) to adjudicate disputes
between the autonomous and central authorities (if a negotiated settlement is not possible) and to interpret constitutional provisions.
At the moment none of these conditions apply in China. The PRC still looks at the role of a
constitution with Leninist spectacles: as an imposition, recording the victory and securing the dominance of the Communist Party, a statement of Marxist ideology and ‘democratic’ centralism, imposing no obligations on rulers but constraining the ruled. There are no genuinely independent institutions (and this includes the judiciary). Statements of human rights do not translate into guarantees. The constitution is not directly enforceable. These are not promising circumstances for genuine autonomy. However, as we show later, there are some signs of moves towards pluralism and democratisation that might lend support to the recognition of some pre-requisites for autonomy.
We now turn to some aspects of the system of autonomy and the broader national framework within which the arrangements of autonomy operate (elaborating the general statements made in this section of the paper). V. The operation of national minority autonomy
V.i The Role of the Chinese Communist Party
Political considerations are paramount in the implementation of regional ethnic autonomy. Party policies toward ethnic minorities (and Tibetans in particular) need to be considered along with the legal
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autonomy framework. The predominance of CCP power in the Chinese political system effectively limits the functioning of the autonomy system.
The CCP’s leading role is an overarching principle in the Chinese Constitution, the Preamble of which incorporates ‘the Four Cardinal Principles’: 1. CCP leadership; 2. Marxism-Leninism and Mao Zedong Thought; 3. the people’s democratic dictatorship; and 4. the socialist road. These act as an important limitation on the effective exercise of autonomy (Chen, 1984: 346). These Principles also appear in the LNRA. While this is in part an indication of the status of the law as a constitutional law, it also emphasizes the importance of the CCP’s role in the practice of NRA.
The question of whether and to what extent the CCP is subject to constitutional supervision remains a subject of debate. Cai Dingjian observes that an ‘increasing number of constitutional theorists, political scientists, and NPC personnel believe that there is substantial theoretical support for the idea that it is necessary to implement constitutional supervision over the CCP’ but acknowledges the practical difficulties of implementing such supervision (Cai, 1995: 227-229). The basis of this theory is the preamble of the Constitution which states that:
the people of all nationalities, all state organs, the armed forces, all political parties and public organizations and all enterprises and undertakings in the country must take the Constitution as the basic norm of conduct, and they have the duty to uphold the dignity of the Constitution and ensure its implementation.
Article 5 provides that ‘… all political parties … must abide by the Constitution and the law. All
acts in violation of the Constitution and the law must be investigated.’ The Party Constitution also states that the Party must act within the confines of the law and the Constitution (Cai, 1995: 228).
Whatever the legal status of the Party’s powers, the CCP’s actual exercise of power is based primarily on its organizational capacity. In this respect, it remains a Leninist institution, in which lower level institutions and members are strictly subordinated to higher levels. A key principle in the Party’s internal organization and mode of exercising governance is democratic centralism. This means that while input into policy is actively solicited and sought, once policy is decided by the centre Party institutions and members have an absolute duty to carry it out, and the ‘minority is subordinated to the majority’. (CCP Constitution 2002 Art. 10) It also means that Party policy remains paramount in all fields, regardless of what formal non-Party institutions may have decided, or what laws may say. As the preamble to the 2002 CCP Constitution concludes: ‘Leadership by the Party means mainly political, ideological and organizational leadership…. Acting on the principle that the Party commands the overall situation and coordinates the efforts of all quarters, the Party must play the role as the core of leadership among all other organizations at the corresponding level.’
A principal way in which the Party dominates state institutions is through the so-called nomenklatura system. Under this system, the Party’s organization departments at various levels control a list of positions in state bodies, with most specifically reserved for Party members. At the pinnacle of this organizational edifice is the list of 4,000 posts which the Central Committee and its organisation departments are responsible for filling and supervising. In addition, there is a secondary list that includes posts in many public institutions (schools, hospitals, associations etc.) and enterprises, for which appointments are to be reported to the centre. (Brodsgaard, unpaginated)
Thus the allocation of many key appointments within autonomous areas is controlled by the relevant Party committees. However, this does not mean there can be no negotiation over the number of posts subject to the nomenklatura or the candidates for such posts. Appointments are increasingly a subject of negotiation between the centre and the localities. (Burns: 458) By the late 1990s, there were a
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number of non-CCP members serving in relatively high positions, such as provincial vice-governors, due to ‘a genuine effort’ by the CCP to promote such people. (Cheng, Li: 26-7)
Party control is exerted not only through individual members, but also through the formation of cells within institutions. Any organization with three or more Party members must create a Party cell. Regardless of their own personal beliefs, Party members are required to ensure that the Party line is adhered to in the work of their institution.
In the early 1990s there was a shift towards strengthening Party organizations within both government and non-government institutions—which continues to date—while at the same time functional specialization and professionalisation of government agencies was promoted. The continuing dominance of party members within more technocratically-oriented institutions was designed to ensure that the political goals of the CCP remained a central principle of decision-making.
This shift towards what has been termed ‘technocratic authoritarianism’ (Xiao 2003: 61) was codified in the 2002 amendments to the CCP Constitution incorporating Jiang Zemin’s theory of the ‘Three Represents’. The change is summarized in the revised text of the first paragraph of the Preamble, which now reads: ‘The Communist Party of China is the vanguard both of the Chinese working class and of the Chinese people and the Chinese nation. It is the core of leadership for the cause of socialism with Chinese characteristics and represents the development trend of China's advanced productive forces, the orientation of China's advanced culture and the fundamental interests of the overwhelming majority of the Chinese people. The realization of communism is the highest ideal and ultimate goal of the Party.’ (Emphasis added, text quoted in Xinhua News Agency 18 November, 2002)
An authoritative statement from People’s Daily on the role of the CCP in politics and law reads as follows:
As pointed out by Comrade Jiang Zemin, our Party’s leadership is mainly political, ideological, and organizational, whereas the key form of political leadership is: To transform the Party’s ideas into the state’s will after going through a statutory procedure; and to bring into effect the Party’s line, principle, and policy through activities organized by the Party and Party members’ exemplary role set for the broad masses. The Party has to exercise leadership over the formulation of the Constitution and law, and also to act consciously within the bounds of the Constitution and law, work strictly according to law, and rule the country according to law.’ (Li Zhongjie) Effects of CCP dominance on exercise of autonomy
In the context of the autonomous areas, any special powers granted to national autonomous areas
by the legal framework must be understood in a context of Party dominance of decision-making, and the fact that Party leaders in the Autonomous Regions (ARs), who are mostly Han Chinese, generally out- rank their minority counterparts. This is a considerable impediment to the functioning of autonomy in practice (Mackerras, 2003, 26). According to authoritative documents, the Party makes final decisions on issues related to nationalities (Potter: 6 citing State Nationalities Affairs Commission documents, ‘Basic Approaches and Policies of the Chinese Communist Party on Nationalities Issues’, 2002). In fact, some commentators believe that due to such factors the TAR enjoys the least amount of autonomy of any Chinese province or region (Rabgey and Sharlho, 39).
In addition, the CCP does not allow its members to practice religion, a requirement that restricts the recruitment of Tibetan cadres and party members. Most Tibetans believe strongly in Buddhism and religion is an integral part of Tibet’s unique culture (Mackerras, 2005, 16 quotes a 1996 survey on the
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religious beliefs of Tibetans in the TAR, Qinghai and Sichuan). In the 1990s, the CCP apparently took a more active approach toward securing the loyalty of Tibetan Party members and ensuring that they did not believe in Buddhism, although they were allowed to attend some religious events (Shakya, cited in Mackerras, 2003, 48).
Local legislative powers both generally and in autonomous areas are also limited by Party influence. A 1991 document entitled ‘Certain Opinions on Strengthening the Party Leadership over the Legislative Work’ is a key text for understanding the CCP’s role in this regard. According to this document, Party intervention is possible in four circumstances: 1. the Politburo and CCP Congress should review any constitutional amendments and major laws before they are submitted to the NPC; 2. CCP approval is needed for the drafting of any laws covering political matters; 3. draft laws covering political matters and drafts of major economic and administrative laws should be approved by Politburo members before they are deliberated by the NPC; and 4. the Party exercises ‘unified leadership’ over legislative work. This leadership has four dominant organizational forms: 1. organizational penetration of the NPC leadership and control over NPC appointments; 2. controlling meeting agendas; 3. organizational oversight over the drafting process; and 4. pre-approval of draft laws by the Politburo. Party members make up more than 70 percent of PC representatives and they are required to abide by Party rules and the Party line. ‘In principle no law should be in conflict with the Party’s interests and/or inconsistent with Party policy’ (Zou: 47).
This pattern also applies to provincial legislative work. However, in some local areas there is tension between Party organs and legislatures since ‘[l]ocal laws are not within the consideration of the Party organs at the same level as the legislatures and the tendency of relying more on policy than legislation is obvious’. Zou argues that in recent years the trend has been for the Party to relax control over government and tighten control over legislative bodies as a way of realizing its policies through legal procedures (Zou: 48). Another view is that in the PRC the traditional Leninist party-state system has been transformed into one ‘in which the Party is allied simultaneously with the executive and legislative branches’. (Brodsgaard and Zheng: 10)
According to Tan, a dominant role is assigned to the CCP in finalizing autonomy legislation. Once drafting of any autonomy regulation is completed at AR level, he writes, the local Party Committee has to submit it to the CCP Central Committee for review, and the Party centre plays the role of consulting various parties on the draft. Only when consensus has been reached between the Party centre, central government agencies and the AR will the autonomy regulation be submitted to the AR PC for enactment. (6)
The lack of commitment to ensuring representation of minorities in the Party hierarchy at local level has been a cause of significant friction between central authorities and minority representatives in the PRC. At the annual NPC meeting in 1997, simmering tensions reportedly erupted in meetings between central leaders and minority representatives, and one of their key demands was that minority cadres be appointed Party chiefs in autonomous areas (Teufel Dreyer, 2004: 309). As mentioned above, during drafting of the 1982 Constitution there were proposals that a much larger number of posts in autonomous areas be reserved for minority members.
V.ii Local and Autonomous Legislative Powers
During the reform era, the PRC has seen an extensive decentralization of power that some argue has created a system of ‘de facto federalism’. (Zheng 1998) Significant devolution of power to legislate for local affairs has been part of this shift. Such general local legislative authority may also be exercised
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by autonomous regions, as well as larger cities with autonomous status that have been explicitly granted such powers by the State Council.
By contrast, the nationality autonomous areas’ powers to modify state policies and laws to suit local needs and to pass autonomy regulations and special regulations are distinct powers unavailable to non-autonomous legislative organs and local governments. In practice, however, the extent of adaptation and even outright contravention of national laws and policies by ordinary provinces and particularly by special economic zones go well beyond those of the NRA areas.
This section will review the scope of general local legislative powers, the scope of special legislative powers available to NRA areas and then show how in fact, due to political reasons, the former have proved to be of much greater utility than the latter. However, the contrast should also demonstrate that the potential for exercising greater autonomy under the existing system certainly exists, given the political will and a more relaxed political atmosphere in Tibetan areas.
General local legislative powers The decentralisation of legislative power in the 1982 Constitution was among its major
innovations. Art. 100 authorizes people’s congresses of provinces and municipalities directly under the central government to adopt local regulations, provided these do not contravene the Constitution, national laws, or administrative regulations enacted by the State Council. Once passed, the regulations should then be reported to the NPCSC ‘for the record’. Similar powers have been granted under specific State Council authorization to the five special administrative zones (SEZs) and to certain larger cities.
As provincial-level units, the five autonomous regions are automatically eligible to exercise this constitutional power of local law-making; Art. 115 of the Constitution makes clear that autonomous areas enjoy the general powers of local governments as specified in Chapter III, Section V, as well as their autonomy powers. The 2005 White Paper confirms that the governments of autonomous regions perform the functions and have the rights of other local state organs and, in addition to these functions and rights, are granted special powers of self-government.
The 2000 Legislative Law (LL) provides the clearest description to date of local legislative powers. LL Chapter 4, Section 1 specifies the scope of the powers of PCs of provinces, autonomous regions, directly-administered cities and ‘relatively large cities’ to make regulations (art. 64) and, in the case of the latter, requires that province-level PCSCs review any local regulations for conformity with the Constitution and national laws and regulations before approving them (art. 63). Thus local authorities themselves are responsible for ensuring that local regulations do not conflict with national laws and policies (Cai, 2004: 392-93).
Local regulations may be made ‘in light of the specific conditions and actual needs of their respective administrative areas’ 5 but cannot flexibly alter national laws like autonomy and special regulations. In addition, the LL (art. 8) reserves legislative power on a number of issues to the NPC or the NPCSC. These are: sovereignty; the organization of the state’s political and judicial bodies; the NRA system; the criminal justice system; detention powers and deprivation of political rights; expropriation of non-state assets; basic civil systems; ‘fundamental aspects’ of the economic and financial systems; litigation and arbitration systems; and ‘other matters’.
5 Article 64 of the Legislative Law provides for local legislation to cover three types of situations: to implement a law or administrative regulation in the particular circumstances of a locality; to cover matters of local concern ‘for which enactment of a local regulation is required’; and to cover matters on which no national law or administrative regulations yet exist.
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The SEZs arguably have greater legislative power than autonomous regions. They have been authorized under specific NPCSC decisions6 to enact local regulations as long as these comply with the ‘general principles’ of national laws. In practice, this has been interpreted to allow SEZs to enact regulations that actually contradict national and provincial legislation. One reason is that no legislative (or other authoritative) interpretation exists on the meaning of the ‘general principles’ of national law (Lin: 154).
In fact, inconsistencies between local laws passed by provincial people’s congresses and national legislation are common (Zou: 49). There is no effective scrutiny of the compliance of general local regulations with the Constitution and other laws and the process of submitting local legislation to the NPCSC for the record (bei an) is not subject to much control. According to the Legislative Law all local laws and regulations must be deposited with the NPCSC or another relevant depository organ such as the State Council or the provincial people’s congress within 30 days. According to one scholar, in practice the NPCSC ‘adopts a policy of passive review towards the deposited local laws, i.e. no review unless there is a complaint’ (Zou: 51). Many local areas do not report their regulations to the relevant bodies (Zou: 51- 52).
Prior to 1993, the NPC ‘exercised no substantial oversight over local regulations’, merely noting their submission. The eighth NPC made changes to this practice, however, with eight special committees undertaking reviews of the 4,200 pieces of local legislation received under this system during its five year term. A report from these committees to the NPCSC stated that ‘a large number of the local regulations did contravene the national laws’. The problematic regulations were sent back to the local people’s congresses with the NPC’s comments, but only eight people’s congresses bothered to reply, and in no case were any of them amended or repealed, nor did the NPC order any of them nullified (Jiang: 508).
The volume of such legislation indicates the scale of the problem of conflict of laws in the PRC system. An article on local legislation states than by 2001, more than 7,000 pieces of local legislation had been enacted, with this figure not including autonomy regulations and special regulations passed by autonomous areas. Over half of currently effective local legislation concerns regulation of the economy.7
Chapter V of the LL provided much more detail on the depository system and the powers of higher level organs to send back or overturn local legislation. However, to date this system has not apparently had any significant effect, and there have been no reports of the NPCSC nullifying local regulations. If any action is taken, it is to ask local lawmakers to amend their decisions. (Zou: 52).
6 July 1992 NPCSC Decision Authorizing the People’s Congress of Shenzhen City and its Standing Committee and the People’s Government of Shenzhen City to ‘formulate, in light of the specific conditions and actual needs and pursuant to the provisions of the Constitution and the general principles laid down in laws and administrative regulations and rules, regulations to be implemented in the Shenzhen Special Economic Zone which shall be submitted to the Standing Committee of the National Peoples Congress, the State Council and the Standing Committee of the People’s Congress of Guangdong Province for the record, and that the People’s Government of Shenzhen City is authorized to formulate rules and is responsible for their implementation in the Shenzhen Special Economic Zone’. 1996 Decision of the NPCSC on Authorizing the People’s Congresses of Shantou City and Zhuhai City and their Standing Committees and the People’s Governments of Shantou City and Zhuhai City to Formulate Regulations and Rules Respectively for Implementation in the Shantou and Zhuhai Special Economic Zones. 7 ‘Legislative work of the local people’s congresses in the last 20 years’ (difang renda 20 nian lai de lifa gongzuo) News and Information Office of the NPCSC Secretariat, 3 January, 2001, available at: http://www.npcnews.com.cn/gb/paper12/1/class001200001/hwz64637.htm
Special autonomous legislative powers The special legislative powers of the people’s congresses in national autonomous areas are
governed by Article 116 of the Constitution and Article 19 of the LRNA, which provides that:
[t]he people's congresses of national autonomous areas shall have the power to enact regulations on the exercise of autonomy and separate regulations in the light of the political, economic and cultural characteristics of the nationality or nationalities in the areas concerned. The regulations on the exercise of autonomy and separate regulations of autonomous regions shall be submitted to the Standing Committee of the National People's Congress for approval before they go into effect …
An autonomy regulation (zizhi tiaoli) may be defined as ‘a regulation passed by the people’s
congress of a national autonomous area that deals with basic issues relating to the autonomy of the autonomous area and to important matters of general concern there’ (Cai, 2004: 392; Shi and Bu: 134). It may also be considered ‘a comprehensive regulation on autonomy’ covering relations between nationalities in the area and relations between the autonomous area and the higher level state organs. However, it cannot regulate other social relationships beyond those between nationalities in the area and it can only partially regulate relations between the autonomous area and higher level state bodies (Ao and Wu: 394-5).
Special regulations (danxing tiaoli), on the other hand, while covering the same potential ground as an autonomy regulation, only deal with one specific area in any particular instrument and thus are more specific in character (Ao and Wu: 399; Shi and Bu: 135-6). In other words a special regulation can cover particular issues relating to autonomy in an autonomous area (Cai, 2004: 392). Both autonomy and special regulations may be made ‘in the light of the political, economic and cultural characteristics of the nationality or nationalities in the areas concerned’.
Unlike general local legislation, autonomy and special regulations require NPCSC approval. The difference may be explained by the principle that wherever flexibility is allowed (ke biantong yuanze), approval is necessary (Cai, 2004: 392-3).
But given the reality of lack of oversight over general local legislation, in practice, as Lin Feng writes, ‘tighter controls are imposed on the legislative authority of the five ethnic minority regions than on provinces and municipalities directly under the [Central People’s Government]. In other words, the five autonomous regions enjoy less legislative autonomy than ordinary provinces directly under the CPG’ (Lin: 157).
This view is confirmed by Tan’s analysis of difficulties in passing autonomy legislation in Guangxi. He asserts that despite the provisions of the Constitution and LNRA, the view of many officials at the centre is that autonomy legislation is really no different from ordinary local regulations, and thus can only govern matters within an autonomous area itself, and not the actions of higher level organs. He argues that, since it requires NPCSC approval, autonomy legislation from the AR should be have the same status as State Council enactments submitted to the NPCSC for approval and passed by the NPCSC, and thus they should bind national institutions in a way that local legislation does not. ‘[Autonomy regulations] have the character of local legislation, but they also have the character of national legislation.’ (6)
In addition to passing autonomy and special regulations, people’s congresses in autonomous areas can enact flexibility rules (biantong guiding) and supplementing rules (buchong guiding) (Ao and Wu: 401-406; LNRA Article 20). Both of these types of regulations may be enacted by the local people’s
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congress or its standing committee and must be approved by higher level state organs. Flexibility rules authorize the flexible implementation of a higher level law, regulation, or regulatory document, or a halt to its application in an autonomous area. Thus these may be enacted to waive the application of laws, regulations and government policy documents of various types.
Nine national laws specifically allow for flexible implementation by autonomous areas: the Criminal Law, the Marriage Law, the General Principles of Civil Law, the Civil Procedure Law, the Inheritance Law, the Forests Law, the Prevention of Communicable Diseases Law and the National Flag Law. Any one flexibility rule may apply to only one law or policy document. If a national law does not contain a provision allowing for flexibility rules, however, enactment of such rules is not permitted (Fu Hualing). The NRA system is based on delegation of authority and if the authority is not specifically delegated then it cannot be exercised. In other words, the centre retains all residual powers. However, as Tan points out, apart from the nine laws specifically allowing flexibility/supplementing rules, alterations to other national laws may in fact be permissible, since a number of areas, including non-autonomous ones, have passed rules making alterations to other laws, including the PRC Criminal Procedure Law and the Election Law for the National People’s Congress and Local People’s Congresses. (9-10)
Supplementing rules are also of a very specific nature: while an autonomy regulation or special regulation might effectively supplement an existing higher level legislative instrument it will do so in a general sense, whereas a supplementing rule will be highly specific in nature (Ao and Wu: 401-406).
Scope of NRA legislative flexibility Cai considers the most important power of the NRA areas to be the opt out power in the last
phrase of Art. 115 of the Constitution (‘implement the laws and policies of the state in the light of the existing local situation’). However, any flexibility or addition to national laws and policies must comply with the ‘spirit’ of the national laws and policies. (2004: 391-2) The clearest statement of the scope of autonomy regulations and special regulations is in LL 66.ii:
Autonomy regulations and special regulations may adapt the provisions of laws and [State Council] administrative regulations to the particular needs of the nationality of the area, but this adaptation must not contradict the basic principles of the laws and administrative regulations, and must not contradict the provisions of the Constitution and the [LRNA] or of other relevant laws and administrative regulations with particular application to nationality autonomous areas.
The Legislation Law states in Article 78 that: ‘The Constitution is the highest legal authority; no
law, administrative regulation, local regulation, autonomous regulation, special regulation or administrative or local rule may contravene the Constitution’ (emphasis added), Article 81, however, specifies that the provisions of autonomy regulations or special regulations on flexibly interpreting a higher level law or regulation will prevail in the autonomous region as will local regulations in an SEZ. A reading of the relevant provisions, therefore, indicates a lack of clarity on the extent of legislative flexibility allowed by the autonomous areas to opt out of or modify national legislation and policies.
There is greater scope for flexibility in implementing national policies, as opposed to laws, although approval for this is also required. Article 20 of the LRNA provides that:
If a resolution, decision, order or instruction of a state organ at a higher level does not suit the conditions in a national autonomous area, the organ of self-government of the area may either implement it with certain alterations or cease implementing it after reporting to and receiving the
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approval of the state organ at a higher level; the state organ at a higher level shall give the reply in 60 days since the day on which the report is received.
In addition, the LRNA provides that ‘On the principle of not contravening the Constitution and
the laws, the organs of self-government of national autonomous areas shall have the power to adopt special policies and flexible measures in the light of local conditions to speed up the economic and cultural development of these areas’ (Article 6(ii)).
Thus the actual scope of legislative flexibility available to national autonomous areas is still unclear. However, according to Ao and Wu, the following principles have emerged in law and practice (410-411):
1. Constitutional provisions are not subject to flexibility 2. Provisions of the LRNA are not subject to flexibility 3. Where laws already make provision for minority issues, no further flexibility is allowed
regarding their subject matter. For example, the PRC Election Law for the NPC and Local people’s congresses which makes specific provisions for elections in minority areas is not subject to modification.
4. Where flexibility is authorized by particular laws, this should not go against the ‘basic principles and spirit’ of these laws.
5. ‘There is no need for flexibility, and there should not be any, regarding all laws and administrative regulations that are already in accord with the “particular political, economic and cultural characteristics of the minority in that area” and where there is already no impediment to their implementation in that area’ (Ao and Wu: 411).
Autonomous legislative powers under-used
In general, the autonomous areas have not often used their special legislative powers to enact
autonomy and special regulations as well as flexibility rules. None of the five ARs has enacted an autonomy regulation, nor have any of them apparently passed any special regulation.8 By contrast, many subprovincial autonomous areas—including some Tibetan areas—have enacted autonomy regulations and special regulations. According to Ao and Wu (writing in 1998), of the nine laws authorizing flexibility rules, such rules have only been enacted in relation to three: the Marriage Law, the Inheritance Law and the Election Law. ARs have only passed flexibility rules relating to the Marriage Law. Flexibility rules related to provincial legislation have only been enacted in relation to four such regulations. By 1995, a total of 59 flexibility and supplementing rules had been enacted by NRA areas (Ao and Wu: 402, 405).
The TAR people’s congress has been particularly inactive in comparison to the other provinces and autonomous regions. A report on the work of the TAR people’s congress from 1998 until 2003 mentions only one piece of legislation passed under the autonomy powers: a flexibility rule regarding the Adoption Law. A cursory review of information available from the News and Information Office of the NPCSC Secretariat also indicates the TAR’s inactivity compared to other provinces and autonomous regions.9 This disparity may be explained by a lack of reporting by the TAR’s people’s congress on its activities or on the relatively small size of the TAR’s population. However, according to an official site, between
8 According to Tan, the GZAR has not passed one special regulation in its 37 year history, and has only made alterations to a small number of laws that specifically allow for these. ‘This can only be said to be a failing in the construction of the minority legal system.’ He suggests that ARs could use their general local legislative powers to pass regulations that make alterations to national laws and policies, as have other areas. (9) 9 There were only 12 news reports on the TAR people’s congress but 42 on Inner Mongolia, 59 on Guangxi, 68 on Yunnan, 67 on Guizhou, 62 on Xinjiang, 31 on Ningxia, and 100 on Gansu.
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1965 and 2002 the TAR people’s congress enacted 150 local rules and regulations which is substantially lower than the numbers enacted by other provincial level jurisdictions (‘Regional Autonomy’ in China’s Tibet: Facts and Figures 2002, available at: www.china.org.cn.)
As mentioned above, to date, none of the five Autonomous Regions have promulgated regional autonomy regulations, although all have drafted them. According to a minority scholar from Guangxi, this state of affairs ‘is not beneficial to the exercise of autonomy powers by the autonomous areas, and affects the development of the economy and culture of nationality autonomous areas’. (Tan: 2)
The case of Guangxi10 is illustrative in this regard. Although the passage of the LRNA ‘does seem to have increased the legitimacy of minority demands and increased the minority localities’ willingness to demand autonomy’ (Kaup: 116), even in the case of Guangxi it has not led to the enactment of autonomy regulations. According to one knowledgeable source, the other four ARs were waiting to see the outcome of the Guangxi efforts to pass an autonomy regulation before trying to get the centre to approve theirs.
Drafting of autonomy regulations started soon after the founding of the Guangxi Zhuang Autonomous Region (GZAR) in 1957, and by 1995, the document had gone through 19 drafts. There had been initial drafts in the 1950s, but the work began in earnest after the passage of the LNRA in 1984. Between then and 1987, there were extensive consultations within the GZAR and in March 1987, the 13th draft was submitted to the CCP Central Committee. The CCP Secretariat sent on the draft to the NPC Minority Affairs Committee and the State Council. Two opinions emerged from this: 1. the draft did not sufficiently reflect the particular character of Guangxi; 2. ‘there was a rather large distance between the opinions of the relevant State Council ministries and commissions and the requirements of Guangxi, reflecting the fact that their perceptions of the spirit of the LNRA were not in accord with each other’. Following two important meetings in 1988 (a CCP Plenum and one on minorities affairs), under the guidance of the NPC Minority Affairs Committee the 18th draft was completed by March 1989, and following further revisions by the MAC, was submitted to the State Council for consultation. (Tan: 2-3)
In 1991 the State Council Legal Affairs Bureau sent the draft GZAR Autonomy Regulations to its ministries and commissions to solicit their opinions. ‘Very few’ had no opinions or had no fundamental objections; while ‘quite a few rejected the draft outright because it contained provisions that affected their departmental economic interests’. Reactions from the ministries and commissions can be summarized as follows: Some more or less completely rejected aspects of the draft that allowed the AR to carry out special policies, stressing that policies must ‘accord with unified national regulations’. In relation to provisions of the draft that required the centre to give preferential treatment to the AR, such as allowing for tax reductions or exemptions, some replied that ‘a uniform policy must be carried out, it will be very difficult to give special treatment to one AR’, while some directly stated that the power to grant tax reductions or exemptions must remain with the central government agencies. Some objected that provisions of the draft were not in accord with their departmental regulations,11 thus implying that the autonomy regulations should be subsidiary to such regulations. Unsurprisingly, almost all responses referred to the draft regulations as ‘local regulations’. ‘In sum, they considered the autonomous areas to be just the same as any other administrative division, neglecting the special character of the nationality autonomous areas, neglecting the rights to autonomy and self-government granted to these areas by the Constitution and the Autonomy Law, and they did not wish to devolve powers to the autonomous areas, or give over any of their interests to them.’ (Tan: 7-8)
10 Kaup considers the Guangxi Zhuang Autonomous Region in her study, however, and the CPG may have fewer concerns about ethnic unrest and separatist activities in this region – although poverty and economic inequality pose significant challenges in both Guangxi and Tibet. 11 Guizhang, e.g. normative documents that do not have the status of law.
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Tan’s account points to the blocking role played by State Council departments. Although the State Council does not have a constitutional role in the exercise of autonomous legislative powers, Article 89 of the Constitution grants it the power ‘to direct and administer affairs concerning the nationalities and to safeguard the equal rights of minority nationalities and the right of autonomy of the national autonomous areas’. In practice, the State Council has been given an effective veto on autonomy legislation at the AR level. As Tan writes, the NPCSC has ceded its approval power to ‘certain functional departments at the centre, in particular the economic management ministries’, because this is the way that the division of interests between local areas and the centre are generally dealt with. This is a reflection of the lack of clear provisions regulating such matters generally, and is reflected in the case of the autonomous areas in the failure of the State Council to enact any implementing regulations for the LNRA. (8)
Since sub-provincial level autonomous areas only need to gain approval for any regulations enacted to give effect to their autonomous powers, in practice they have enjoyed greater legislative flexibility than the autonomous regions. The 1982 Constitution represented a liberalization in this regard since previous constitutions had required that all regulations passed by autonomous areas be approved by the NPCSC (Cai, 2004: 392-3).
The changes in the LRNA have also created uncertainty and some scholars speculate that it will still be some time before regional-level autonomy regulations are finalized. In the Tibetan case, the power to make such regulations could provide a structure from which to negotiate specific points. In other words, Sino-Tibetan negotiations could eventually focus on the content of such regulations and whether they could contain provisions guaranteeing greater autonomy and new arrangements for the relationship between the region and the CPG.
Drafting of the autonomy regulations for the TAR began in 1980 under the leadership of the TAR Party Committee. The draft underwent several rounds of discussion by the TAR Party Committee Standing Committee and the TAR people’s congress standing committee and won the support of the NPC Minority Affairs Committee and ‘relevant central organs’. There were a number of exercises soliciting opinions on the draft at consultation meetings and the document went through fifteen drafts altogether (Ao and Wu: 455). Reportedly none of these were ever even submitted to the State Council for discussion.
The content of the 15th draft included:
1. A preamble emphasizing national unity and asserting that the TAR was an indivisible part of China (Ao and Wu: 455).
2. Provisions that mainly Tibetans should constitute the personnel of autonomous organs and exercise their proper role as masters, but with appropriate representation of other minorities, and emphasizing the principle that minorities and the Han relied upon each other.
3. Provisions on self-government including: • An emphasis on the exercise of self-governance, such as setting development plans • A detailed series of special policies and flexible arrangements granted by the centre to Tibet • Reflection of the contemporary changes in the situation, e.g. the socialist market economy • A chapter on religion reflecting the important and particular nature of religion in Tibet (Ao and
Wu: 456).
It is unclear why the draft did not pass, but it was never formally submitted to the NPCSC for approval. Ao and Wu state that: ‘In sum, the 15th draft of the regulations rather completely reflected the actual situation in Tibet, thus laying quite a good foundation for the draft’s eventual transformation into a bill’ (456).
22
A number of sub-provincial autonomous areas have enacted autonomy regulations, however, including some in Tibetan areas (Ao and Wu: 395-398). Ao and Wu list 127 autonomy regulations passed between 1985 and 1996 as an appendix to their book. All of those listed were promulgated by sub-provincial autonomous units and not by autonomous regions.
V.iii Regulations and Policy on Religion in Autonomous Regions
Religion and Tibetan Identity
A strong link exists between Tibetan Buddhism and Tibetan identity, especially in light of the role of religion in the traditional political structure of Tibetan society. Religion in Tibetan areas is now strongly linked to separatist and self-d

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Chinaâ€™s Constitutional and Legal Framework for Autonomy

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