Download pdf - Chinaâ€™s Constitutional and Legal Framework for Autonomy

China’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.

2


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.

3


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’.

4


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.

5


• 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

6


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.

7


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.

8


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

9


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

10


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

11


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

12


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

13


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

14


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

15


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.

16


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

17

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

18


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

19


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.

20


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.

21


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-determination movements by Chinese policymakers (Fischer, 2004: 6). Indeed, the Chinese authorities are aware of the relationship between ethnic identity, nationalism, and religion and much of the religious repression in Tibetan areas reflects attempts to suppress separatist inclinations, and ensure security and unification on the centre’s terms. Demonstrations in the late 1980s have been blamed on the liberalization policies of the early-mid 1980s which allowed greater religious freedom, and the demonstrations were followed by a crackdown during the 1990s.

On the other hand, new views may be emerging that policies to control religious institutions and personnel in Tibet have not achieved their objectives and that repression has actually backfired. Carlson cites an interview with a Chinese scholar – with generally hard-line views on Tibetan policy — who believes that ‘Chinese leaders’ failure to come to terms with the central role of religion in Tibetan life continued to block the development of successful policymaking in the region’ (Carlson: 42). Some high-level Party officials, such as Pan Yue, may also be advocating changes in religious policy (Ragbey and Sharlho: 31, citing a 2001 article by Pan Yue advocating greater discussion of religious policies).

In addition, debate is apparently occurring within political and party circles over the extent of the connection between religion and ethnic identity. Potter contends that when the two are viewed as being separate, religious challenges to Chinese authority by minority groups can be repressed without criticism that such a policy would damage the basic identity of a minority culture. On the other hand, if religion and identity are connected, policies on NRA must reflect religious concerns (Potter:17).

Regulations related to religion

The 1982 Constitution and the LRNA articulate provisions on freedom of religion for ethnic

minorities in China. Article 36 of the Constitution provides for freedom of religious belief and prohibits organizations and individuals from compelling citizens to believe or not to believe in a religion and from discriminating against religious believers and non-believers. It restricts this right, however, to practices that are ‘normal religious activities’ and prohibits the use of religion to ‘engage in activities that disrupt the public order, impair the health of citizens, or interfere with the educational system of the state’. Religious bodies and religious affairs may not be subject to any foreign domination.

The specific autonomy provisions in Article 4 and Section 6 of the Constitution make no reference to religion, although Article 4 promises the freedom for national minorities to ‘preserve or reform their own ways and customs’.

Article 11 of the LRNA provides that ‘the organs of self-government of national autonomous areas shall guarantee the freedom of religious belief to citizens of the various nationalities’. It then repeats the provisions of Article 36 of the Constitution.

23


New Regulations on Religious Affairs came into effect in March 2005 which strengthen, and provide more detail on, but do not significantly alter the key principles of existing provisions (Mackerras 2005: 16, note 52). One aim of these regulations is to ‘further standardize the registration system for the establishment of a religious body or site for religious activities’ a practice which has allowed state control over the definition of ‘normal religious activities’ (Human Rights in China, ‘China’s New Regulation on Religious Affairs: A Paradigm Shift?’, 14 March 2005, prepared for a roundtable organized by the US Congressional-Executive Commission on China).

The 1997 Criminal Law provides that ‘Workers of State organs that deliberately deprive citizens of their right to religious beliefs or who encroach on minority nationalities’ customs or habits, if the case is serious, are to be sentenced to two years or fewer in prison or put under criminal detention’ (cited in Sautman, 1999: 303, note 4). Other Articles in the Criminal Law, however, could limit religious freedoms by imposing penalties on ‘feudal superstition and superstitious sects’.

Sorensen and Phillips observe that China has not adopted legislation agreeing to ‘[r]espect the rights of minorities to establish and maintain contact with individuals and communities in matters of religion at the national and international levels’ in line with international minority rights standards.

Sorensen and Phillips summarize national, regional and local regulations related to religion in the TAR and other Tibetan autonomous areas (30-32). Key regional provisions include the 1991 Interim Measures of the TAR on the Administration of Religious Affairs; 1991 Interim Provisions of Gansu Province on the Administration of Religious Affairs; 1998 Provisions of Yunnan Province on the Administration of Religious Affairs; and the 1992 Provisions of Qinghai Province for the Administration of Places of Religious Activity (Sorensen and Phillips, 31, notes 127 and 128). Some or all of these provide for the following rights and limitations (Sorensen and Phillips: 31-32):

• Respect for and protection of religious belief and activity • Compliance of religious activities with the Constitution and laws • Acceptance of Communist Party leadership and support of the socialist system by religious

believers and places of worship • Government approval for rebuilding or opening a place of religious activity • Management of places of religious activity by ‘patriotic religious groups whose members must

support the Party and socialism, be patriotic and law abiding, and safeguard the unity of the State and ethnic groups’

• Prohibition on the use of ‘religion or places of religious activity … to incite trouble, create havoc, carry out criminal activities such as separatism, destroy the unity of ethnic groups, or disturb social and public order’

• Quotas for the numbers of monks and nuns in religious institutions in the TAR • Requirement that monks and nuns be ‘patriotic and law abiding’ • Control by the propaganda and publishing departments of religious content in publications • Conformity of religious content in publications to state and Party policies • Approval required for ‘editing, publishing, or distributing’ religious materials • Prohibitions on proselytizing • Restrictions on foreign donations to and contacts with religious institutions

Regional and local regulations on marriage, technology, and education also contain provisions related

to religious practices.

24


Although traditional marriage ceremonies are permitted in the TAR and Tibetan autonomous prefectures in Sichuan and Qinghai, religion may not be used to ‘interfere’ with marriage in these locations (Sorensen and Phillips: 29).

The 1991 Guoluo Autonomy Regulations include a prohibition on the use of religion to ‘interfere with the promotion of technology’ and on coercing ‘individuals into making contributions to religious institutions’ (Sorensen and Phillips: 12).

Traditionally, education in Tibetan culture has been religious in nature in contrast to the secularized state education system now imposed on Tibetan areas (Johnson and Chhetri: 4, citing Postiglione, 1999). Regulations in the TAR, and some Tibetan autonomous areas in Sichuan, Qinghai and Gansu, prohibit the promotion of religion in schools and the dissemination of superstitious thinking (Sorensen and Phillips: 22, 23). The Ganzi Autonomous Prefecture in Sichuan and the Yushu and Guoluo Tibetan Autonomous Prefectures in Qinghai ‘prohibit school-age children from entering temples and ban religious organizations from recruiting them for religious study’ (Sorensen and Phillips, 23).12

Party and Political Influence on Religion in Tibet

Overall, Party policy reflects fears of separatism and the submission of religion to Party control and

its adaptation to socialist society and Party doctrine (Potter: 13). The TAR Communist Party published a document in 1994 articulating this last objective: ‘Tibetan Buddhism must self-reform … [and] adapt … to suit the development and stabilization of Tibet … Religious tenets and practices which do not comply with a socialist society should be changed’ (TAR Communist Party, ‘A Golden Bridge Leading to a New Era’, 1994, quoted in Free Tibet Campaign, Tibet Facts No. 4: Control of Religion’, available at http://www.freetibet.org).

Since the CCP’s Third Work Forum on Tibet in 1994 restrictions have been placed on religion, the rebuilding of monasteries, and the numbers of monks and nuns. (Smith: 19). This Forum also initiated a Patriotic Education Campaign and Democratic Management Committees were established in monasteries and run by outside officials in order to prevent Tibetan nationalist impulses and undermine the Dalai Lama’s influence (Smith: 19). A ban on images of the Dalai Lama instituted in 1996 continues (Mackerras, 2005: ii) and there have been campaigns attacking ‘the character and integrity of the Dalai Lama’ (Sorensen and Phillips: 45). These measures stem from fears that religion could effectively undermine Party control in minority regions and a belief that religion competes with Party authority for people’s loyalty (Potter: 17).

As discussed in the section on Party influence generally, Party members are not permitted to profess religious beliefs. A 1997 Xinjiang Party Committee Propaganda Bureau Document, although relating specifically to Xinjiang, emphasizes this principle, which is equally applicable to Tibetan Party members:

Ordinary citizens are permitted two freedoms. Though Party members are also citizens, they are first of all members of the party of the proletariat, and therefore enjoy only one freedom—the freedom not to believe—and absolutely do not enjoy the freedom to believe. They cannot have feet in two boats. (cited in Bovingdon, 35).

12 According to Bovingdon, students in Xinjiang are prohibited from professing religious beliefs. If this is also generally true for Tibetan areas, it poses significant restrictions on the right to non-discrimination for religious believing and non-believing citizens.

25


The United Front’s Nationalities and Religion Bureau evidently gives high priority to Tibetan Buddhism in its work, with four out of six departments devoted to Tibetan issues and only one department assigned to the remaining 54 minority groups (Ragbey and Sharlho: 32).

According to the State Council’s 1997 White Paper on Freedom of Religious Belief in China the Central Government has contributed large sums for the restoration and building of monasteries and other religious institutions.

Interest of Han Chinese in Tibetan Buddhism

Ragbey and Sharlho argue that a complicating factor in relations between Tibetan areas and Chinese authorities has been the growing interest of Han Chinese – both inside and outside of China - in Tibetan Buddhist practices (31). They contend that Chinese officials exert particular control over monasteries that attract Chinese worshippers and cite as an example a crackdown in 2001 on the Serthar Buddhist Institute in eastern Tibet (Ragbey and Sharlho: 31). V.iv Language

While the Constitution and the LNRA provide for autonomous areas to use local languages and allow for education in minority languages in schools, in practice the legal equality of minority languages with Chinese is a fiction. As Potter points out, the focus of Constitutional arrangements on formal equality are part of the problem: because the provision that ‘all nationalities have the freedom to use and develop their own spoken and written languages, and to preserve or reform their own ways and cultures’ includes Han communities, as Han migration into minority areas increases, this could limit the use of minority languages and the practice of minority cultures (Potter: 11).

In the Tibetan context, the Chinese language has become necessary for conducting daily life in the TAR. Despite legal encouragement of bilingualism and use of the Tibetan language, some scholars have observed that Tibetan is actually discouraged ‘because of its association with the Tibetan nationalist movement’ (Johnson and Chhetri: 4) and that the purpose of official policy is to ensure the appearance of autonomy and therefore greater stability in an unstable region (Johnson and Chhetri: 5 citing Lin).

The TAR People’s Congress adopted regulations on the protection of the Tibetan language on 22 May 2002 (Tournadre, 2003). They provide that ‘Tibet is the common language of the Autonomous Region of Tibet’, ‘Tibetan and Chinese have equal administrative status’, ‘the Chinese and those belonging to other minorities living in the Autonomous Region of Tibet must learn Tibetan’ and ‘those bilingual in Chinese and Tibetan will receive priority in recruitment to administrative positions’. These regulations amend earlier provisions from 1987 which required Tibetan children to learn Tibetan. The new regulations allow children and families to choose between using Tibetan or Chinese when attending classes and taking examinations (Tournadre, 31). The regulations limit Tibetan autonomy with regard to language by emphasizing the ‘equality’ of the Tibetan and Chinese languages.

Reports that relations between Han and Tibetan cadres are worsening may be due, in part, to language difficulties, since Han cadres often make decisions and then use Tibetan cadres as translators – a practice that creates resentment and isolates Han officials from the local population (Potter, draft: 9, citing Sun Yi: 309-310).

26


V.v Opportunities in Spread of Competitive Elections

Although the extent to which China is democratising is hotly debated among scholars and observers, it is indisputable that mechanisms to make local governance more accountable are providing opportunities for some popular input into local politics. These mechanisms could potentially allow for the engagement of a wider range of Tibetan interests in local political affairs, particularly if it were in a climate of reduced tensions in the TAR and other Tibetan areas. Also, if there were more involvement of independent-minded Tibetans in the local people’s congresses (LPCs), this could make for a more effective and meaningful use of the legislative powers granted to the TAR and to other Tibetan autonomous areas.

This section will review four aspects of recent PRC political developments: the electoral system; the growing role of LPCs; elections to villagers’ committees (VCs); and elections to urban residents’ committees (RCs).

The electoral system

The spread of competitive elections to villagers’ committees in China’s countryside has elicited a great deal of speculation about the CCP’s attitude to democratisation. While these elections are certainly significant, it is important to point out that apart from this and some minor local experimentation, the electoral system has remained basically unchanged since the enactment of the 1979 Election Law.

Control over nominations has been the major means by which the CCP has continued to dominate the electoral process. Although the 1979 Election Law provided for secret ballots, expanded the scope of direct elections to PCs at county/district level, required more candidates than seats and allowed any three voters to nominate a candidate, in practice Party-dominated election committees13 have continued to ensure that the candidate list reflects the CCP’s wishes. The Election Law does not stipulate a procedure for the process of producing a formal list of candidates from those nominated. (Lin 2000: 186)

Discrimination against rural people is reflected in the electoral system, in which rural votes count much less than urban. Under the 1979 Election Law, as amended in 1995,14 there is a universal proportion of four rural votes being equivalent to one urban one. (Lin 2000: 174-5) Clearly in the Tibetan areas this requirement would mean that votes of the Han population officially resident in the cities have greater weight than those of rural Tibetans.

Promoting mechanisms to make officials accountable has been one aspect of Beijing’s project of ensuring political stability. The idea that the attitude of the people towards candidates for leadership should matter under the ‘principle of recognition by the masses’ has been one aspect of this. (Li, Lianjiang 1999: 108) This takes a variety of forms, including primary elections under the name of ‘opinion polling’.

One example of this emerged from Shanxi Province in the 1990s, where protests against corrupt and abusive village Party leaders led to a system of subjecting candidates for office in village Party branches to a ‘vote of confidence’ or ‘vote of recommendation’ prior to the formal intra-Party elections for these posts. Such practices have now spread to a number of provinces, despite lack of endorsement by the centre. (Horsley 2001) In some places, the CCP has conducted opinion polls to determine attitudes towards different candidates for local Party leadership positions. (Li, Lianjiang 1999: 103-109)

13 Generally the chairman of the election committee is the Party secretary of the Party organization at the same level. 14 Art. 4 of amendments.

27


The role of LPCs

A noted development in Chinese politics over the last two decades has been the rise of the people’s congresses as an important power base at the national and the local level. This does not mean they have become independent; they are still dominated by the Party, with about 70% of PC deputies nationwide being CCP members. (Zou: 47) However, a handful of relatively outspoken independent deputies have been elected to LPCs nationwide.

As institutions the PCs are playing a growing role in the political system, both as the source of the legislation which codifies the constitutional provision ‘ruling the country in accordance with law and establishing a socialist rule of law state’15 and as a mechanism of ‘supervision’ over government.

LPCs have often been pioneers in establishing mechanisms for holding government agencies accountable. One major way in which they do this is through supervising the implementation of law. This function first appeared in the mid-1980s when PCs initiated law implementation inspection visits. Whether in the NPC or in LPCs, special panels are set up for the purpose, which sometimes solicit opinions from the public and publicise inspection activities and their outcomes through the media. (Cai 2002: 41-45, Chao: 129-131)

A more controversial aspect of PC supervision has been that related to the adjudication of individual cases. LPCs have been more proactive in this regard, often raising troubling issues of local protectionism and conflict of interest. (Cai 2002: 50)

LPCs were the first to open up the review of legislation to interested parties. Now such public hearings are held by many LPCs, and have been endorsed by the NPC in the Legislation Law (Art. 34).

Another mechanism instituted by LPCs is the so-called pingyi procedure, which can be initiated by deputies and used to examine the work of particular government agencies or officials. Once the motion is approved by the leadership of the PC, an ad hoc committee is formed to take on the task; similar activities as used in the supervision of the implementation of laws are undertaken. Law enforcement agencies have been a primary target of LPC pingyi motions. (Chao: 127-9)

Village elections VCs (and urban residents’ committees) were written into the 1982 Constitution as elected ‘mass

organisations of self-management at the grassroots level’. Their tasks are: ‘The residents’ and villagers’ committees establish committees for people’s mediation, public security, public health and other matters in order to manage public affairs and social services in their areas, mediate civil disputes, help maintain public order and convey residents’ opinions and demands and make suggestions to the people’s government.’ (art. 111)

Villagers’ committees (VCs) are not technically organizations of government, but a kind of executive of village self-governance. As Thurston puts it, ‘Elected village leaders are not government officials. Rather, they are transmission belts between the government and the villagers, reporting popular opinion and proposals to the government, helping to maintain social order, and mediating civil disputes’. (1998: iii) VCs are also responsible for implementing state policies in the villages.

After more than a decade of experimentation with competitive village elections, in November 1998 the NPCSC passed the Organic Law of the Villagers’ Committees of the PRC. The Organic Law includes various provisions related to elections, such as banning appointment of members to VCs (art. 11), requiring the publication of an electoral roll 20 days before polling (art. 12), requiring the establishment

15 This was added as an amendment to the Constitution in 1999.

28


of an election committee elected by the Villagers’ Assembly16 (art. 13), requiring a greater number of candidates than seats17 and candidates to be nominated by members of the electorate, and mandating secret ballots and open vote counting (art. 14). It also outlaws threats, bribery, forgery and ‘other illegitimate means’ in the conduct of elections (art. 15). The law requires that VCs operate a ‘system of open administration’, including publishing accounts every six months (art. 22). In some areas, nomination procedures have been made more open and meaningful by conducting primaries, in which all voters can nominate candidates for available offices. This often leads to a situation in which there are many more candidates than seats, with two or more contesting each top position. (Horsley 2001)

The 1998 law also incorporated a new article on CCP basic level organizations acting as the ‘leadership core’ in the villages that, ‘in accordance with the constitution and the laws, support and guarantee that villagers engage in self-governance activities and directly exercise their democratic rights’ (art. 3). The continuing lack of clarity about the relationship between these two institutions often results in tensions. (Oi and Rozelle 2000: 522)

The proportion of villages which have held competitive elections for VCs is unclear. Even where contested elections have been held, the impact on local conditions and power structures vary enormously, particularly given the dual authority structure of Party and government. Economic factors such as the degree of industrialisation and the linkage of the village economy to the outside, including by migration, are crucial in determining the locus and nature of decision-making in any particular village, and the level of interest of villagers in elections.

Elections to urban residents’ committees In recent years, there have been some experiments with contested election of urban residents’

committee (RC) members. Although RCs are included in art. 111 of the 1982 Constitution and the Organic Law of the Urban Residents’ Committees of the PRC passed in December 1989 (coming into effect on January 1, 1990) is very similar to the Organic Law on VCs, the functioning of RCs has generally received much less attention. In 1999, the MoCA launched experiments in 20 cities on ‘fresh approaches to urban grassroots self-governance’ including contested elections to RCs. Often the procedures used have been those developed for VC elections.

According to the law, RCs cover 100-700 urban households, are supposed to be composed of elected members, and answer to a residents’ assembly. In practice, however, RC members have generally been appointed by local government and Party organs. (Horsley 2001) RC members depend on stipends provided by local governments and their only potential resource base is businesses they run or fee-paying services they provide. Along with their notorious monitoring function, they are also responsible for local security, dispute mediation, birth control and public health, environment and sanitation, legal education and social services. (Choate 1998: 16-25)

16 This is supposed to be composed of all adult villagers or their representatives. 17 It is important to note that the Chinese term often translated as ‘competitive elections’ (cha’e xuanju) just means that there should be more candidates than seats available, not that there should be competition for each post. Thus there may be four candidates for three available posts, as Manion observed in elections to township congresses in the Chongqing municipality. (2000: 767-769) Pastor and Tan write that in ‘most’ of the VC elections they observed there was only one more candidate than seats available. (2000: 507) Here I will use ‘contested elections’ to translate the Chinese term.

29


VII. Article 31 and the Hong Kong Example The second type of autonomy under Chinese constitution is provided under Article 31. It was

established in the 1982 Constitution and seeks to overcome some of the limitations of NRA. The Article is short and there is little else in the Constitution which relates to this type of autonomy. The Article itself tells us very little about the purposes and nature of the autonomy. It reads:

The state may establish special administrative regions when necessary. The systems to be institutionalised in special administrative regions shall be prescribed by law enacted by the National People’s Congress in the light of specific conditions. It is drafted to give maximum flexibility to the NPC in formulating the scope and contours of

autonomy. The autonomy can be adapted to the circumstances of a region. The autonomy must be established through a law enacted by the NPC, and as a basic law, it would enjoy a higher status than ordinary law. The reference to ‘systems’ to be instituted suggests that the region may be granted characteristics and the power to make policies different from those of the mainstream system. It has become customary to refer to the autonomy under this Article as ‘one country two systems’. This may give a clue to the reasons for its inclusion in the Constitution but these words are not used in the Constitution. It is well known that an arrangement under which Taiwan would rejoin China but retain its market economy, political system and even the army, was envisaged. It has so far been used as the foundation for the transfer of sovereignty over Hong Kong and Macau. The PRC position is that Article 31 may only be used for the recovery of regions which were taken away from the ‘motherland’ and cannot therefore be applied in Tibet. It may be hard to sustain the idea that Art. 31 was envisaged as having any broader application than as a solution to the Taiwan question. The provision is clearly linked to the preambular statement: ‘Taiwan is part of the sacred territory of the PRC. It is the lofty duty of the entire Chinese people, including our compatriots in Taiwan, to accomplish the great task of reunifying the motherland.’ (Constitution, Preamble paragraph 9)

Cai describes Art. 31 as being specifically designed to incorporate into the PRC distinct areas of the country ‘where, for historical reasons, socialism had not been practiced’ and allow them to continue their existing systems, capitalism in particular. (2004: 202) A report from the time cites an NPC deputy as stating that the autonomy of SARs differs from national and ordinary local autonomy. (Xinhua 29 Nov. 1982). (A short historical analysis of the origin of Article 31 is given in Appendix II). However, the 1951 (17 Points) Agreement between Tibet and the Central People’s Government can be regarded as the precursor of Article 31 and the question of its application in Tibet may be raised. After all as originally conceived, the Article was intended only for Taiwan.

Application of Article 31

In what ways is Article 31 autonomy superior to the NRA? If applied to Tibet, what problems would it solve that are inherent in the NRA? How easily can Article 31 autonomy be applied to Tibet given that it has been integrated into the economic and legal system of the Mainland? We examine these questions by a brief reference to the experience of Hong Kong. However, it should be pointed out that a hallmark of Article 31 is its flexibility; the Hong Kong SAR does not need to serve as a prototype (although it seems to have done so for Macau, Ghai 2000b), and if and when applied to Taiwan, the scope and mechanisms of autonomy would undoubtedly be different.

30


Hong Kong became the Special Administrative Region of Hong Kong of the People’s Republic of China (HKSAR) on 1 July 1977 when Britain transferred sovereignty over Hong Kong to China. There were two distinct phases in the establishment of the HKSAR. The first was negotiations between China and Britain on the terms of the transfer of sovereignty (Ghai 1999). At first China was reluctant to negotiate the terms with Britain; instead it stated ‘one country two systems’ as the basis of Hong Kong’s constitutional system. Under it Hong Kong’s economic, legal, and social systems, including the protection of human rights, would remain unchanged, and its political system would retain its essential features (including the absence of democracy) but adjusted to the reality of a new ‘sovereign’. All of this was encapsulated in about 12 points on one page. However, Britain wanted a treaty to agree on Hong Kong’s new system, and was concerned to elaborate the provisions of the new law for Hong Kong in great detail and to secure as firm legal foundations as possible. The result was the Sino-British Joint Declaration on the Question of Hong Kong, 1984, which would also serve as the basis of the Basic Law that the NPC would enact.

The second phase was the drafting of the Basic Law which was undertaken by a Basic Law Drafting Committee appointed by China. It consisted of 59 members, of which a majority (36) were from the Mainland. The drafting of the Law, which was intended to give effect to the Joint Declaration, took about four years. It was enacted in April 1990 and came into effect on 1 July 1997.

From this brief account, it is obvious that Article 31 can serve as the framework of negotiations unlike the NRA law which is detailed, non-negotiable and cannot really be accommodated to the specific needs of a region. But the PRC position sometimes has been that the Central Authorities would not negotiate with its own people, and the Article became the framework for negotiations only because sovereignty rested with a foreign power. However, the PRC cannot be too dogmatic about it, because in the case of Taiwan, it would have to negotiate with its people and leaders.

The second point is the flexibility that the Article facilitates. Under the Basic Law, Hong Kong was enabled to opt out of many provisions of the Chinese Constitution, in particular the detailed way in which the rule of the Communist Party is expressed (including the nomenklatura), and Marxist political and economic ideology. Very few Mainland laws apply in Hong Kong. The Hong Kong legislature has the authority to make laws and policies on all matters other than defence and foreign affairs, but even in these areas, it has primary responsibility for internal security and is authorised to enter into agreements with foreign states and international organisations (and is a member of many international and regional organisations). Hong Kong has its own currency, monetary and fiscal system; can issue its own passports; controls its immigration policies; decides on infrastructural development; is responsible for education, health, etc. It has its own system of justice, the common law applies and there is a separate—and independent—court system. English is an official language. Land belongs to the state but its administration is in the hands of the SAR (income from sale or lease of lands goes to Hong Kong). Rights and obligations are based more on the concept of a ‘permanent resident of Hong Kong’ than on Chinese citizenship, which enables Hong Kong to preserve its identity and restrict entry to and residence in Hong Kong of Mainlanders (and others).

The third point is that it has been possible to secure relatively secure legal foundations for Hong Kong’s autonomy—based on an international treaty with Britain (which is no longer of any great practical significance) and national constitutional provisions. The NPC can amend the Basic Law, but no amendment can ‘contravene the established basic policies of the PRC regarding Hong Kong’ (Article 159)—a reference to the provisions of the Joint Declaration. Within Hong Kong, the Basic Law is supreme and all laws applied in Hong Kong have to be compatible with it. A strong, common law based judiciary reviews challenges to law, regulations and policies, and thereby reinforces the special status of

31


the Basic Law. The Basic Law has made Hong Kong the most rule of law oriented part of China, with an impressive protection of human rights (including the freedoms of religion, association and assembly).

This is not to say that there are no problems. Although the Basic Law defines in detail the relationship between Hong Kong and Mainland institutions, with a view to ensuring Hong Kong’s autonomy, it has been hard in practice to fully ensure that autonomy. The Central Authorities are frequently referred to as the ‘sovereign’; the Chief Executive of Hong Kong is essentially an appointee of the Central People’s Government, and being the most important official in Hong Kong, serves to implement directives s/he receives from Beijing. The lack of democracy in political institutions in Hong Kong and China means that decisions are made bureaucratically, without people’s participation, and the autonomy of the people is thereby weakened. Doubts remain as to the exact scope of the application of the PRC Constitution (contrary perhaps to the intention that the law under Article 31 would establish a self-standing constitutional order). The Standing Committee of the NPC has the power to interpret the Basic Law (and thus bypass the restrictions on its amendment in Article 159). This power has been used several times (often to reach decisions inconsistent with the aspirations of Hong Kong people); it has seriously undermined the legal foundations for Hong Kong’s autonomy. There is no independent judicial body which can determine the provisions regarding the relationship of Hong Kong and the Central Authorities. These matters are in fact decided by the Central Authorities themselves. The constitutional foundations of Article 31 autonomy have turned out to be less effective than was once expected. The autonomy is granted for only 50 years and since the Basic Law came into force, there has been greater economic and social integration between Hong Kong and China than was implicit in that Law. On the positive side, apart from differences over democracy, there has been little to divide Hong Kong and China, and in practical, day to day matters, Hong Kong enjoys considerable autonomy, and is able to pursue its distinctive life style.

So Article 31 autonomy, suitably framed, would be in Tibet’s interests. Tibet may not need the same degree of autonomy, e.g., in monetary or fiscal systems, international trade, legal system, but the freedom religion, freedom to pursue language policies, and develop a distinct political system based on genuine local representation and participation, and relations between Tibetans and non-Tibetans living in Tibet, necessary to the vision Tibetans have of their region can be accommodated under Article 31.

We have already raised the question whether Tibet would be entitled to rely on Article 31. We believe that this is more a political than a legal issue. Even in the disputed 17 Point Agreement of 1951, Tibet’s special status and its distinctive concerns are recognised, which prompted a separate treatment of Tibetan from other minorities. It is clear that the needs and legitimate aspirations of Tibetans are distinctive in several respects, and if true autonomy is to be given to Tibet, the framework of the NRA as it has operated so far will be inadequate. At the least considerable adjustments to the NRA legislation would be necessary, and a midway position between NRA and Article 31 may be required.

VI. Conclusions and Possibilities

It is not the purpose of this paper to suggest or comment on negotiating strategies, but to describe and analyse legal regimes of autonomy. Significant limitations exist in the functioning of the Chinese system of national regional autonomy which could hamper the Tibetans’ efforts to achieve their key demands for ‘genuine autonomy’ and the unification of Tibetan areas within the current system. These obstacles include: state priorities of unity, stability, sovereignty, as expressed in the strict suppression of any separatist and political dissent; Communist Party supremacy; state economic and development priorities, especially in Western regions; weak rule of law, constitutional ideology, and lack of democratic

32


development; the possibly temporary nature and integrationist approach to minority policy (as informed by Chinese culture and Marxist-Leninist theory); and the political realities within Tibet itself of Central control and unrealized autonomy.

In addition, the 2004 White Paper leaves little 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. In light of these limitations, possibilities for achieving Tibetan demands within the current system

may seem slim. However, some possibilities may exist and particular points of view within Chinese political and academic circles could be encouraged in order to eventually achieve a better environment for Sino-Tibetan negotiations. Some trends that may present options include:

1. Complexity and larger debate: Rabgey and Sharlho argue that the process of policy-making on

Tibetan issues has become increasingly complex in recent years allowing for more diverse views and greater decentralization of the decision-making process (Rabgey and Sharlho: 31). They also point out that the ramifications of recent personnel changes within Tibetan policy-making institutions are still unclear but may have some positive effects (Rabgey and Sharlho).

2. Ethnic nature and problems with economic development: A greater recognition of the ‘ethnic’ nature of the Tibetan question and the limits of economic development in resolving ethnic tensions may have created space for such new approaches to the Tibetan question. Several scholars both inside and outside China (Sautman, 2002; Rabgey and Sharlho; Wang Lixiong) have argued that the policy of increasing economic development in Western China has failed to resolve the Tibet question and may have exacerbated ethnic tensions due to a growing economic gap. The costs involved in subsidizing growth in Tibet, spending on massive infrastructure projects and launching the Great Western Development Campaign have been substantial for the central government (Rabgey and Sharlho: 26). As a result, there may be a greater willingness to look beyond economic development for solutions. This approach could provide greater impetus toward other solutions and toward a resolution generally.

3. Change of leadership at the top: Although Hu Jintao previously took a tough approach against separatism in Tibet as the TAR Party secretary in the early 1990s, this could actually make him less vulnerable to attack from hardliners if he chooses to negotiate with the Tibetans (Sautman, 2002: 100). Others, however, have observed that his criticisms of Chinese intellectuals in 2004 have cast doubts on hopes that Hu would implement a more liberal political agenda (Mackerras, 2005: 31). It is still unclear how the change of leadership might affect minority policy and Tibetan policy in particular.

4. Tibet’s uniqueness: The Chinese government has acknowledged that Tibet has different characteristics from other nationality areas. For example, reference has been made to Tibet’s ‘four uniques’: region, culture, significance, and treatment (Sautman, 2002: 103). This could provide justification for special treatment of Tibet within national autonomy arrangements.

5. Issue of trust: Recent statements by the Dalai Lama to the press that Tibet would benefit from remaining part of China and his willingness to negotiate within China’s constitutional framework could address the previous lack of trust between the two sides. (Perry, 2004, quoted in Mackerras, 2005: 15). China’s confidence may also increase with greater political stability in Tibet – and in

33


China generally – and allow for a fairer assessment of the risks and benefits of greater autonomy for Tibet without being colored by an obsessive fear of separatism (Mackerras, 2005: 32).

6. Strengthening legal provisions: • Negotiating the terms of autonomy regulations for the TAR as a ‘Basic Law’ for Tibetan areas. • Strengthening existing ‘opt-out’ clauses – such as the power to amend national laws and policies

granted by Article 115 of the Constitution. • Clarification of certain measures which are currently ambiguous – such as specifying which

national laws do or do not apply to Tibet and the extent of local legislative power and Central or Party supervision over Tibetan autonomy.

• Allow Tibetan religious believers access to Party membership • The application of Article 31 to the Tibetan case. Perhaps unlikely, but its broad wording could

allow some scope for achieving a level of autonomy somewhere between that exercised by Hong Kong and the national regional autonomy system without stressing ‘one country, two systems’.

Bibilography ‘The Agreement of the Central People’s Government and the Local Government of Tibet on Measures for the Peaceful Liberation of Tibet’, 23 May 1951 (‘17-Point Agreement’), available at www.tibetjustice.org. 2003 ‘Beijingers get greater poll choices’ China Daily 8 December 2003 Becquelin, Nicolas, ‘Staged Development in Xinjiang’, 178 The China Quarterly 358, June 2004. Bovingdon, Gardner, ‘Autonomy in Xinjiang: Han Nationalist Imperatives and Uyghur Discontent’, East-West Center, Policy Studies 11, Washington, 2004. Brodsgaard, Kjeld Erik and Zheng, Yongnian “Introduction” in Brodsgaard and Zheng (eds) Bringing the Party Back in: How China is Governed 2004 (Singapore: Eastern Universities Press) Brodsgaard, Erik “Improving Party cadre system to better govern China,” East Asian Institute Bulletin, Sept. 2001, available at: http://www.nus.edu.sg/NUSinfo/EAI/Erik.htm Burns, John, “Strengthening Central CCP Control of Leadership Selection: the 1990 Nomenklatura” China Quarterly 1994, No.138 Cai, Dingjian, The Essence of the Constitution (Xianfa jingjie) (Beijing: Law Press, 2004). Cai, Dingjian, ‘Functions of the People’s Congress in the Process of Implementation of Law’ in Chen, Jianfu et al, ed.s, Implementation of Law in the People’s Republic of China (The Hague: Kluwer Law International, 2002) 35-53. Cai, Dingjian, ‘Constitutional Supervision and Interpretation in the People’s Republic of China’, 9 Journal of Chinese Law 219, Fall 1995. Carlson, Allen, ‘Beijing’s Tibet Policy: Securing Sovereignty and Legitimacy’, East West Center, Washington, 2004.

34

http://www.tibetjustice.org/

http://www.nus.edu.sg/NUSinfo/EAI/Erik.htm


Chao, Chien-min 2004 ‘The National People’s Congress Oversight: Power and the Role of the CCP’ in Kjeld Erik Brodsgaard and Zheng, Yongnian (eds) Bringing the Party Back in: How China is Governed (Singapore: Eastern Universities Press). Chen, Albert H. Y., ‘Autonomy of Hong Kong’, 14 Hong Kong Law Journal 341, 1984. Cheng, Li “Jiang Zemin’s Successors: The Rise of the Fourth Generation of Leaders in the PRC” 2000, No.161 The China Quarterly Ching, Frank 1999 ‘China: seeds of change’ FEER, Sept. 30, 1999 Choate, Allen C 1998 Local Governance in China, Part II: An Assessment of Urban Residents Committees and Municipal Community Development (San Francisco: The Asia Foundation) Working Paper No. 10 Constitution of the People’s Republic of China, adopted 4 December 1982, English version available at: http://english.people.com.cn/constitution/constitution.html. Fischer, Andrew Martin, ‘Economic Dimensions of Autonomy and the Right to Development in Tibet’, International Centre for Human Rights and Democratic Development, 2004. Fischer, Andrew Martin, ‘Urban Fault Lines in Shangri-La: Population and Economic Foundations of Inter-Ethnic Conflict in the Tibetan Areas of Western China’, Crisis States Programmeme, London School of Economics, Working Paper No. 42, June 2004. Fu, H. L. 2002 ‘Shifting Landscape of Dispute Resolution in Rural China’ in Chen, Jianfu et al, ed.s, Implementation of Law in the People’s Republic of China (The Hague: Kluwer Law International) 179-195 Ghai, Yash P. 2000a ‘Autonomy Regimes in China: Coping with Ethnic and Economic Diversity’, in Yash Ghai (ed), Autonomy and Ethnicity: Negotiating Competing Claims in Multi-Ethnic States (Cambridge, New York: Cambridge University Press, 2000). Ghai, Yash 2000b ‘The Basic Law of the Special Administrative Region of Macau: Some Reflections’, International and Comparative Law Quarterly, Vol. 49, January 2000 Ghai, Yash P 1999 Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law (Hong Kong: HKU Press) (2nd edition). Horsley, Jamie P 2001 ‘Village Elections: Training Ground for Democratization’ 28: 2 The China Business Review 44-52. Hsieh, David 2002 ‘Chinese Cities Experiment with Democratic Elections; Evoking Widespread Enthusiasm, the Polls Follow Major Breakthroughs After Similar Trials in Guangxi Province Last Year’ The Straits Times 2 March 2002 Ieong, Wan Chong 1986 “One Country, Two Systems” and the Modern Constitutional Science (“yi guo liang zhi” yu xiandai xianfaxue) (Macau: University of Macau Press) Jiang, Jinsong, The National People’s Congress of China (Bejing: Foreign Languages Press, 2002).

35


Johnson, Bonnie and Chhetri, Nalini, ‘Exclusionary Policies and Practices in Chinese Minority Education: The Case of Tibetan Education’, 2 Current Issues in Comparative Education, 30 April 2000. Jones, William C 1985 ‘The Constitution of the People’s Republic of China’ Washington University Law Quarterly Vol. 63 Kao, Lang 1989 One Country, Two Systems: Its Theory, Practice and Feasibility University of Maryland Ph.D thesis Kaup, Katherine Palmer, Creating the Zhuang, Ethnic Politics in China (Boulder, London: Lynne Rienner Publishers, 2000). Law of the People’s Republic of China on Regional National Autonomy, adopted 31 May 1984 and revised on 28 February 2001. Li, Lianjiang 1999 ‘The Two-Ballot System in Shanxi Province: Subjecting Village Party Secretaries to a Popular Vote’ 42 The China Journal 103-118

Li, Linda Chelan 2000 ‘The “Rule of Law” Policy in Guangdong: Continuity or Departure? Meaning, Significance and Processes’ 161 The China Quarterly 199-220 Li Zhongjie, ‘Theories and Practice of the Building of Legal System over the past 20 Years’ People’s Daily, FBIS-CHI-98-359, December 25, 1998 Mackerras, Colin, ‘Ethnic Minorities in China’, in Mackerras, Colin (ed.), Ethnicity in Asia (London and New York: RoutledgeCurzon, 2003), 15-47. Mackerras, Colin, China’s Ethnic Minorities and Globalisation (London and New York: RoutledgeCurzon, 2003). Mackerras, Colin, ‘People’s Republic of China: Background Paper on the Situation of the Tibetan Population’, A Writenet report commissioned by the United Nations High Commissioner for Refugees, Protection Information Section, February 2005. Magnier, Mark 2003 ‘China Moves Towards an Open Vote’ Los Angeles Times 5 December 2003 Manion, Melanie 2000 ‘Chinese Democratization in Perspective: Electorates and Selectorates at the Township Level’ 163 The China Quarterly 764-782. Moneyhon, Matthew D., ‘China’s Great Western Development Project in Xinjiang: Economic Palliative or Political Trojan Horse?’, 31 Denver Journal of International Law and Policy 491, Summer 2003. Moneyhon, Matthew D., ‘Controlling Xinjiang: Autonomy on China’s ‘New Frontier’’, 3 Asian-Pacific Law and Policy Journal 4, Feb 2002. Nathan, Andrew J 1986 ‘Political Rights in Chinese Constitutions’ in R. Randle Edwards et al (eds) Human Rights in Contemporary China (New York: Columbia University Press)

O’Brien, Kevin J. & Lianjiang Li 2000 ‘Accommodating “Democracy” in a One-Party State: Introducing Village Elections in China’ 162 The China Quarterly 465-489

36


Oi, Jean C and Rozelle, Scott 2000 ‘Elections and Power: The Locus of Decision-Making in Chinese Villages’ 162 The China Quarterly 513-539 Pastor, Robert A and Tan, Qingshan 2000 ‘The Meaning of China’s Village Elections’ 162 The China Quarterly 490-512 Peng, Zhen 1982 ‘Report by Peng Zhen’ Xinhua 5 December 1982 (BBC Summary of World Broadcasts, FE/7202/C/1-16) Phan, Binh G., ‘How Autonomous Are the National Autonomous Areas of the PRC? An Analysis of Documents and Cases’, Issues and Studies 83, July 1996. PRC Government, ‘White Paper on Regional Ethnic Autonomy in Tibet’ (May 2004) and ‘White Paper on Regional Ethnic Minorities in China’ (February 2005). Rabgey, Tashi and Sharlho, Tseten Wangchuk, ‘Sino-Tibetan Dialogue in the Post-Mao Era’, East-West Center, Policy Studies 12, Washington, 2004. Sautman, Barry, ‘Resolving the Tibet Question: Problems and Prospects’, 11 Journal of Contemporary China 77 (2002). Shi, Tianjian 2000 ‘Economic Development and Village Elections’ in Zhao, Suisheng ed China and Democracy: The Prospect for a Democratic China (Routledge: New York) 233-252 Shi, Wenzheng and Bu, Xiaolin, ‘Legislation in National Autonomous Areas’, in Otto, Jan Michiel; Polak, Maurice V.; Chen, Jianfu; and Li, Yuwen (eds.), Law-Making in the People’s Republic of China, (The Hague, London, Boston: Kluwer Law International, 2000). Smith, Warren, ‘China’s Policy on Tibetan Autonomy’, East-West Center Washington Wrking Papers, No. 2, October 2004. Sorensen, Theodore C. and Phillips, David L., Belfer Center for Science and International Affairs, John F. Kennedy School of Government, Harvard University, Legal Standards and Autonomy Options for Minorities in China: The Tibetan Case, 2004. Tan Naichang, ‘Discussion of the difficulties in enacting autonomy regulations and new thoughts on promoting minority legislation—examples from the Guangxi Zhuang Autonomous Region’ (lun zhiding zizhi tiaoli de kunnan ji tuijin minzu lifa de xin silu—yi guangxi zhuangzu zizhiqu wei li), Guangxi Nationalities Institute Journal (Philosophy and Social Science Edition), No. 3, 1995 Teufel Dreyer, June, ‘Assimilation and Accommodation in China’, in Brown, Michael E. and Ganguly, Sumit, Government Policies and Ethnic Relations in Asia and the Pacific, (Cambridge, MA and London: The MIT Press, 1997, 351. Teufel Dreyer, June, ‘Economic Development in Tibet under the People’s Republic of China’, 12 Journal of Contemporary China 411 (2003). Thurston, Anne F. 1998 Muddling Towards Democracy: Political Change in Grassroots China (Washington, DC: US Institute of Peace)

37


Tibetan Bulletin, Volume 8, Issue 6, November-December 2004. Tomaševski, Katarina, ‘Economic, Social, and Cultural Rights, The Right to Education, Report Submitted by the Special Rapporteur, Addendum, Mission to China’, 21 November 2003, UN Doc. No. E/CN.4/2004/45/Add.1. Tournadre, Nicolas, ‘The Dynamics of Tibetan-Chinese Bilingualism’, 45 China Perspectives 30 (January-February 2003). Wang, Irene 2003 ‘A whiff of freedom in Beijing elections; Independent candidates plan to contest seats in the district congress poll’ South China Morning Post 21 November 2003 Wang, Irene 2003 ‘District elections fail to move voters’ South China Morning Post 11 December 2003 Wang, Shiru and Guo, Chunming 1998 ‘”One Country Two Systems” and China’s Current Constitution’ (“yi guo liang zhi” yu zhongguo xianxing xianfa) Shanxi University Journal (Philosophy and Social Science Edition) (shanxi daxue xuebao [zhexue shehui kexue ban]) No. 2 1998 26-28 Wang, Shuping, ‘The People’s Republic of China’s Policy on Minorities and International Approaches to Ethnic Groups: A Comparative Study’, 11 International Journal on Minority and Group Rights 159, 2004. Weng, Byron 1982 “Some Key Aspects of the 1982 Draft Constitution of the PRC” China Quarterly No.92, 1982 492-506 Xiao, Gongqin 2003 ‘The Rise of the Technocrats’ 14:1 Journal of Democracy 60-65 Xinhua News Agency 2002 ‘Explanations on amendment to CPC Constitution’ provided by unnamed ‘leading official’ of CPC Congress Secretariat published in China Daily, 18 November, 2002 Xinhua News Agency 2000 ‘Development of Grassroots Democracy in Cities Urged’ 6 September, 2000 Xinhua 1982 ‘The New Constitution and the Issue of Reunification’ 29 November 1982 (BBC Summary of World Broadcasts, FE/7198/C/11) Yu, Xingzhong, ‘Ethnic Regional Autonomy in the People’s Republic of China’, presented at: International Conference on Comparative National Experiences of Autonomy: Purposes, Structures and Institutions, Centre for Comparative and Public Law, The University of Hong Kong on 10 April 2005. Zhang, Shujun 2002 ‘Preliminary Exploration of Deng Xiaoping’s Thought on the Legal System’ (Deng Xiaoping fazhi sixiang chutan) Journal of Qinghai Junior Teachers College No. 3 Zhou Yong, ‘Political Principles vs. Legal Techniques: Group Rights Perspective on Combining “Regional” and “National” Autonomy in China’ 2005 unpublished paper on file with the authors. Zhou, Yong and Lundberg, Maria, ‘Hunting Ban against the Last Hunting People in their Autonomous Area: Three Key Issues for the Implementation of China's Regional National Autonomous Law in Oroqen Autonomous Banner’ 2005 unpublished paper on file with the authors. Zhu, Guobin and Yu, Lingyun, ‘Regional Minority Autonomy in the PRC: A Preliminary Appraisal from a Historical Perspective’, 7 International Journal on Minority and Group Rights 39, 2000.

38


Appendix III c Democratisation in China: Opportunities in spread of competitive elections

Although the extent to which China is democratising is hotly debated among scholars and observers—with some arguing that what have been seen as “positive” developments are often in fact contributing to institutionalizing an authoritarian system—it is indisputable that mechanisms to make local governance more accountable are providing opportunities for some popular input into local politics. These mechanisms could potentially allow for the engagement of a wider range of Tibetan interests in local political affairs, particularly if it were in a climate of reduced tensions in the TAR and other Tibetan areas. Also, if there were more involvement of independent-minded Tibetans in the local people’s congresses (LPCs), this could make for a more effective and meaningful use of the legislative powers granted to the TAR and to other Tibetan autonomous areas.

Promoting mechanisms to make government accountable has been one aspect of Beijing’s project of ensuring political stability. The idea that the attitude of the people towards candidates for leadership should matter under the ‘principle of recognition by the masses’ has been one aspect of this. (Li, Lianjiang 1999: 108, citing a textbook on Party organization work) This takes a variety of forms, including primary elections under the name of “opinion polling”. In Shenyang, residents’ committees have been asked to organize public evaluations of local government cadres. (Choate 1998: 26)

This section will review five aspects of recent PRC political developments: some issues relating to the electoral system; the growing role of LPCs; elections to villagers’ committees (VCs); elections to urban residents’ committees (RCs); and popular involvement in the nomination of candidates for Party posts. —The electoral system The spread of competitive elections to villagers’ committees in China’s countryside has elicited a great deal of speculation about the CCP’s attitude to democratisation. While these elections are certainly significant, it is important to point out that apart from this and some minor local experimentation, the electoral system has remained basically unchanged since the enactment of the 1979 Election Law. While the latter did represent a big step forward—for example, by requiring that elections be conducted by secret ballot—the lack of change since then ‘may imply that the [CCP] is not willing to make a full commitment’. (Lin 2000: 179)

Control over nominations has been the major means by which the CCP has continued to dominate the electoral process. Although the 1979 Election Law expanded the scope of direct elections to PCs at county/district level, required more candidates than seats18 and allowed any three voters to nominate a

18 The 1995 amendments required that there be from one third to 100 percent more candidates than seats in direct elections, and between 20 and 50 percent more candidates than seats in indirect elections. (Lin 2000: 186)

39


candidate, in practice Party-dominated election committees19 have continued to ensure that the candidate list reflects the CCP’s wishes. This is made possible as the Election Law does not stipulate a procedure for the process of producing a formal list of candidates from those nominated. (Lin 2000: 186) In practice, independent candidates have often been eliminated in this way, and some have even been imprisoned for trying to run for election to local PCs.

Discrimination against rural people is reflected in the electoral system, in which rural votes count much less than urban. Under the 1979 Election Law, as amended in 1995,20 there is a universal proportion of four rural votes being equivalent to one urban one. (Lin 2000: 174-5) Clearly in the Tibetan areas this requirement would mean that votes of the Han population officially resident in the cities has greater weight than the votes of rural Tibetans. Township elections An unprecedented popular vote for the head of township government in Buyun, Suining Municipality, Sichuan Province in 1998 attracted a great deal of media attention inside and outside China, and much speculation about plans for further expanding the scope of democratic elections in China. This essentially involved accepting nominations for the post from the public and then holding a vote in a specially-formed committee composed of township officials, village leaders and village representatives to narrow down the field of 15 candidates. The two that emerged as candidates were not those favoured by the district Party authorities, and a third official candidate was thus nominated by the township Party committee. This candidate was given resources to campaign in all ten of the villages in the township, and he won the election by a margin of only 12 votes. The Buyun PC, which had the constitutional authority to choose the township government head, then endorsed the result in a resolution. (Manion 2000: 781-2)

According to Manion, while the Buyun case was ‘a bold electoral experiment’, in terms of the wider Party policy that has sought to use various measures to align popular sentiment with Party choices in the selection of local leaders, it was ‘nearly a complete failure and by no means a great success’ as the official candidate won by such a narrow margin, despite the superior resources devoted to his campaign. (2000: 782) Manion details mechanisms for such alignment being used in elections at the township level to county PCs, which reflect a departure from Leninist concepts of representation. ‘[T]he system is configured so that local Party committees want to select candidates who will win, ideally with a margin of victory big enough to legitimate the Party choice’. (2000: 764-5)

Some ‘opinion polls’ on candidates for township government head have been essentially elections to these posts. For example, in a Shenzhen township, voters nominated candidates in a primary, and then an electoral committee composed of local officials, Party members, VC members, heads of villager small groups, urban residents’ committee members and enterprise and union representatives and selected by the election organizing committee voted in an ‘opinion poll’ to rank the five top candidates from the primary. Then, as in Buyun, the township PC confirmed the result. (Horsley 2001) Contested elections to district PCs Most recently, much has been made in the international media about independent candidates standing for election to LPCs in various districts in Beijing. Some reported this was the first time independents had

19 Generally the chairman of the election committee is the Party secretary of the Party organization at the same level. (Lin 2000: 182) 20 Art. 4 of amendments.

40


run since the 1980 election campaign in the universities. (Wang ‘A whiff of freedom’ 2003) This may or may not be true, but certainly independent candidates have run elsewhere, for example in Shenzhen and in Hubei.

Independent candidates faced severe restrictions on their ability to campaign: they were not allowed to print or distribute leaflets without obtaining a difficult-to-get permit, to put up posters or advertise their candidacy in any other way, to send out campaign literature to voters, or to solicit campaign contributions. (Magnier 2003)

In the event, many of the independent candidates in the Beijing elections did not get onto the ballots as the election committees did not select them, but some did manage to get listed. (‘Beijingers’ China Daily 2003) There were complaints about the lack of transparency and clear standards for the nomination committees’ work. (Magnier 2003) Voters in some districts were under pressure to cast ballots, with follow up calls from work units and schools to those who had not voted by late in the day, as the media urged people to ‘cherish democratic rights’ and Hu Jintao and Jiang Zemin were shown on TV going to the polling stations. (Wang ‘District elections’ 2003) —The role of LPCs A noted development in Chinese politics over the last two decades has been the rise of the people’s congresses as an important power base at the national and the local level. This does not mean they have become independent; they are still dominated by the Party, with about 70% of PC deputies nationwide being CCP members. (Zou: 47) Some scholars argue that the move to expand the role of PCs has actually increased the strength and legitimacy of the Party. While direct CCP intervention in legislative affairs may have declined, this is in part due to the fact that the Party has strengthened its leadership role within the PCs. (Chao: 132-3) In Chao’s view, the new system that is emerging is one in which ‘the Party is allied simultaneously with the executive and the legislative branches’. (Chao: 136)

As institutions the PCs are playing a growing role in the political system, both as the source of the legislation which codifies the constitutional provision ‘ruling the country in accordance with law and establishing a socialist rule of law state’21 and as a mechanism of ‘supervision’ over government. (Since the former is mainly covered in the section of this paper on local legislative powers, the focus here will be on oversight mechanisms.) Also, some degree of competitiveness in local elections has allowed the election to LPCs of a number of independent deputies.

In many ways, LPCs have been the pioneers in establishing mechanisms for holding government agencies accountable. One major way in which they do this is through supervising the implementation of law. In a 1986 revision to the Organic Law on the Local People’s Congresses and Local People’s Governments of the PRC, LPCs at and above country level were given the power to supervise implementation of the Constitution and the laws within their jurisdictions. (Art. 8(i), Chao: 129) This function first appeared in the mid-1980s when PCs initiated law implementation inspection visits. In 1993, the NPCSC issued Provisions on Strengthening the Inspection of the Implementation of Law. Whether in the NPC or in LPCs, special panels are set up for the purpose, and specific procedures have been developed for their work, which often include soliciting opinions from the public22 and publicising inspection activities and their outcomes through the media. As a result, resolutions may be issued to deal with particular problems in an area of law implementation, or amendments to a law may be proposed.

21 This was added as an amendment to the Constitution in 1999. 22 In the case of an inspection on implementation of the Environmental Protection Law, when the panel arrived in a location, it would invite input from the public either in person or by phone. (Cai 2002: 46)

41


(Cai 2002: 41-45, Chao: 129-131) However, according to Cai ‘formalist tendencies’ in inspection work have meant it has not had as much impact as it could have. He attributes this to a variety of factors, including the general weakness of law implementation, deference to the authority of government and involvement in inspection panels of officials from the agencies responsible for implementing the laws under review. (2002: 48)

A more controversial aspect of PC supervision has been that related to the adjudication of individual cases. ‘During the last 10 years… the People’s Congress has begun to consider supervising specific judgements made by the judicial organs as a means of strengthening its power.’ While PCs may have difficulty in exercising effective supervision over government, due to the latter’s superior power, as the judiciary is a relatively weak branch of government, there is no such barrier to asserting authority through this type of supervision. (Cai 2002: 48-9) LPCs have been more proactive in this regard, often raising troubling issues of local protectionism and conflict of interest. But this trend is also related to PC representatives playing a more active role in seeking to represent their constituents and respond to complaints from the public. (Cai 2002: 50)

LPCs have played a pioneering role in opening up the review of legislation to interested parties. In autumn 1999, for the first time Guangdong Provincial People’s Congress held hearings at which members of the public were invited to express opinions on draft legislation. (Ching 1999) Now such public hearings are held by many LPCs, and have been endorsed by the NPC in the Legislation Law (Art. 34). However, the LL states that public distribution of drafts of bills is to be done only at the discretion of the Council of Chairmen (Art. 35).

Various mechanisms to increase accountability of government officials have been instituted by LPCs. So-called pingyi procedures can be initiated by deputies and used to examine the work of particular government agencies or officials. Once the motion is approved by the leadership of the PC, an ad hoc committee is formed to take on the task; similar activities as used in the supervision of the implementation of laws are undertaken. Law enforcement agencies have been a primary target of LPC pingyi motions. (Chao: 127-9) As early as 1992 Guangdong PCs instituted a system of appraisals for government officials which, in some places, were put into their files for the record. (Li, Linda 2000: 204) Since the late 1980s, local PCs have, on occasion, rejected Party-approved candidates for government posts and for higher level PCs and made their own choices. (Horsley 2001) —Village elections As mentioned above, there is little consensus in western and Chinese scholarship on the implications of the spread of relatively competitive elections for villagers’ committees23 in rural China. In part, the debate centres on the leadership’s motives in introducing such elections, but there is also much contradictory information on basic facts about the elections, such as what proportion of China’s approximately 930,000 villages have actually held elections of any kind, what proportion of these were competitive and what practical implications of such elections were for the power structure in the villages.

It is important to note that villagers’ committees (VCs) are not technically organizations of government, but a kind of executive of village self-governance. Members of VCs are not considered state cadres (although they are commonly referred to as ‘village cadres’) since their salaries24 are paid directly

23 This formulation is preferable to the commonly used ‘village committee’, since the Chinese refers to the people, not the place. 24 The salary level is low and they are expected to work their own land as well as performing their duties relating to the VC.

42


out of the village treasury, and the lowest level of government in the rural areas is the township.25 VCs do not have any formal tax-raising powers (but may raise funds locally on a voluntary basis for particular initiatives), and any state taxes or fees they collect have to be remitted to the township government, which then gives a proportion to the VC for its activities. (Choate 1998: 8)

Oi and Rozelle appropriately describe VC members as being ‘agents of the state’. (2000: 524) As Thurston puts it, ‘Elected village leaders are not government officials. Rather, they are transmission belts between the government and the villagers, reporting popular opinion and proposals to the government, helping to maintain social order, and mediating civil disputes’. (1998: iii) VCs are also responsible for implementing state policies in the villages26—including on birth control, allocation and fulfilment of quotas of crops villagers must sell to the state at a fixed price, collection of taxes, fulfilment of corvée labour levies and organizing village schools and welfare. (Oi and Rozelle 2000: 524) Some of these functions evidently may put the VC into conflict with what villagers see as being in their interests. (Thurston 1998: 19)

The VC reports to a villagers’ assembly (VA) composed of all villagers over 18 (now more commonly a villagers’ representative assembly [VRA] of elected/selected representatives27) (art. 17). The VA is a successor institution to assemblies of either the agricultural producers’ cooperative (APC) or commune members. (Oi and Rozelle 2000: 514) It is the highest decision-making body on various matters (most related to economic affairs) listed in the 1998 Organic Law of the Villagers’ Committees of the PRC (art. 19), acts as the rule-making body for the village (art. 20) and has the power of recall of VC members (art.16).28 In reality, VRAs meet relatively infrequently and thus cannot truly exercise the powers vested in them.29 Also, Party members often dominate VRAs, constituting 25-35 percent of members. (Oi and Rozelle 2000: 521) In contrast to the intense interest in VCs, the functioning of VAs and VRAs has hardly been studied by scholars. (Thurston 1998: 18)

VCs (and urban residents’ committees) were written into the 1982 Constitution as elected ‘mass organisations of self-management at the grassroots level’.30 Methods of election were not described, nor

25 The ambivalence of the position of VC members is demonstrated by a 2000 NPCSC interpretation of the Criminal Law which found that a provision prohibiting bribery and embezzlement by state functionaries did apply to them since they were ‘dealing with public affairs’. (Cai 2002: 39-40) 26 Art. 4 of the 1998 Organic Law reads:

The people’s government of a township, a nationality township or a town shall guide, support and help the villagers committees in their work, but may not interfere with the affairs that lawfully fall within the scope of the villagers’ self-government. The villagers’ committees, on their part, shall assist the said people’s government in its work. 27 After 1990, the Ministry of Civil Affairs began to promote representative assemblies as a more workable alternative to gatherings of all adult villagers. According to the very incomplete evidence that is available, members of representative assemblies are often selected through traditional processes, e.g. heads of all households, or the most senior males in the village, rather than elected formally by villagers. (Thurston 1998: 17) 28 This level of detail on the role of the villagers’ assemblies was not included in the 1987 law. See below for discussion on the two version of the law. According to Oi and Rozelle, the 1987 law ‘states that “the villagers’ assembly is the supreme decision-making body of village self-government, and all the major village affairs are to be decided by the villagers’ assembly”’, but this text does not actually appear in the law. They cite an official report (probably from the Ministry of Civil Affairs) as the source for this text, so this may be an authoritative interpretation of the sense of the 1987 law. (2000: 515) They also provide some information on the content of MoCA regulations and opinions on the functioning of VA/VRAs. [While this article is very informative, it is clear that they didn’t even read the texts of most of the laws and regulations they mention, even the two versions of the Organic Law.] 29 Nationwide, between 1988 and 1995, the average meetings per annum for VRAs was 3.58, while for VAs the figure was 1.52. (Oi and Rozelle 2000: 520) 30 Interestingly, despite their apparently superior status, the establishment and role of villagers’ assemblies were not mentioned in the 1982 Constitution.

43


was the relationship of these committees to other power organs at grassroots level, but their responsibilities were listed: ‘The residents’ and villagers’ committees establish committees for people’s mediation, public security, public health and other matters in order to manage public affairs and social services in their areas, mediate civil disputes, help maintain public order and convey residents’ opinions and demands and make suggestions to the people’s government.’ (art. 111)

Despite the widespread establishment of these institutions,31 it was only in November 1987, after a long internal battle,32 that the NPCSC passed legislation to implement this constitutional provision in the form of the Organic Law of the Villagers’ Committees of the PRC (for Trial Implementation), effective June 1, 1988.33 This law outlines the character, role and functioning of villagers’ committees and villagers’ assemblies. The importance of the law was in affirming the autonomous status of VCs, which had become ‘effectively extensions of township government’ between their emergence in the early 1980s and the enactment of the law. (O’Brien & Li 2000: 472) On the form of elections to return the members of the VC the 1988 Organic Law states only that they should be ‘directly elected’ by the villagers (art. 9).34

It was not until 1998 that the ‘trial’ label was removed,35 with the passage in November by the NPCSC of the Organic Law of the Villagers’ Committees of the PRC (effective immediately). This contains much more detail on the VCs, essentially incorporating much of the regulatory framework created in the intervening years by the Ministry of Civil Affairs (MoCA, the government agency in charge of organizing the village elections). The Organic Law includes various provisions related to elections, such as banning appointment of members to VCs (art. 11), requiring the publication of an electoral roll 20 days before polling (art. 12), requiring the establishment of an election committee elected by the VA (art. 13), 36 requiring a greater number of candidates than seats37 and candidates to be nominated by members of the electorate, and mandating secret ballots and open vote counting (art. 14). It also outlaws threats, bribery, forgery and ‘other illegitimate means’ in the conduct of elections (art. 15). The law requires that VCs operate a ‘system of open administration’, including publishing accounts every six months (art. 22).

In some areas, nomination procedures have been made more open and meaningful by conducting primaries (known as ‘sea elections’ [haixuan]), in which all voters can nominate candidates for available offices. In some places, candidates make speeches and answer questions from voters in public meetings. Those receiving the highest number of votes then stand in the formal elections. This often leads to a

31 O’Brien and Li write that ‘VCs replaced brigades nearly as fast as family farming replaced collective agriculture’. (2000: 471) 32 There is an extensive literature, both in Chinese and English, on the debates over the elections both before and after the 1987 Organic Law, and the reasons why different people, institutions and CCP factions supported or opposed them. As mentioned above, Shi provides a fascinating analysis of the institutional process that led to the adoption on a national level of contested elections as the norm for returning VCs. (1999) 33 Fu Hualing argues that it is possible this initiative could only have occurred given the positive environment in the countryside as a result of the the rising incomes the household responsibility brought to most rural areas in the 1980s. 34 Given the generality of the Trial Law, the Ministry of Civil Affairs, which is responsible for the VC elections, issued nine circulars on the conduct of elections between the 1987 and 1998, and 25 of 31 province-level PCs issued implementing regulations for the Trial Law. (Pastor and Tan 2000: 491) 35 This had meant the law was only implemented in some selected areas. 36 Previously the Party secretary had usually headed the election committee. (Pastor and Tan 2000: 494) 37 It is important to note that the Chinese term often translated as ‘competitive elections’ (cha’e xuanju) just means that there should be more candidates than seats available, not that there should be competition for each post. Thus there may be four candidates for three available posts, as Manion observed in elections to township congresses in the Chongqing municipality. (2000: 767-769) Pastor and Tan write that in ‘most’ of the VC elections they observed there was only one more candidate than seats available. (2000: 507) Here I will use ‘contested elections’ to translate the Chinese term.

44


situation in which there are many more candidates than seats, with two or more contesting each top position. (Horsley 2001)

The 1998 law also incorporated a new article on CCP basic level organizations acting as the ‘leadership core’ in the villages that, ‘in accordance with the constitution and the laws, support and guarantee that villagers engage in self-governance activities and directly exercise their democratic rights’ (art. 3). The relationship between village Party branches and VCs has been a subject of controversy since as early as 1983. (O’Brien & Li 2000: 470) In the view of the central government, the VC acts as the political base for the village, while the Party branch is the ‘leadership core’. (Li 1999: 105) Despite the provisions of the 1998 Organic Law, the continuing lack of clarity about the relationship between these two institutions often results in tensions, and ‘no clear-cut, simple generalization’ can be made about the balance of power between them. (Oi and Rozelle 2000: 522)

While officials said that the percentage of Party members elected to VCs had fallen from 80 percent to 60 percent between 1993 and 1995, non-Party members are frequently recruited into the CCP after being elected. (Thurston 1998: 30) MoCA data from 1998 indicates that Party members constituted over 80 percent of VC members in most provinces for which information was available. (Pastor and Tan 2000: 504)

Peng Zhen, the principal sponsor of the law on VCs (and a key figure in strengthening the NPC during the 1980s), believed that grassroots elections could be an important instrument for extending and consolidating Party rule. (O’Brien & Li 2000: 468-70) In their overall assessment of the contribution of the VC elections to democratisation, O’Brien and Li write: ‘Peng Zhen’s original vision still rules the day. Elections are designed to increase mass support for the Party, and grassroots democracy is understood to be fully compatible with strong state control.’ (2000: 488-9)

Estimates of the proportion of villages that held contested elections prior to the enactment of the 1998 Organic Law varied widely, with authoritative Chinese sources citing figures from 10 percent to 60 percent. Some villages were still not electing VCs at all, with Guangdong, Guangxi, Yunnan and Hainan all being laggards in this regard. (O’Brien & Li 2000: 485-6)

Even where contested VC elections have been held, the impact on local conditions and power structures vary enormously, particularly given the dual authority structure of Party and government. Economic factors such as the degree of industrialisation and the linkage of the village economy to the outside, including by migration, are crucial in determining the locus and nature of decision-making in any particular village, and the level of interest of villagers in elections. ‘The point is not that all Party secretaries are powerful and villagers’ committees are not, but that real power is determined by control over income-generating enterprises, not elections’. In villages dependent on agriculture, where land allocation is a central factor in determining the economic outlook for villagers, they have a strong incentive to participate in local politics, including elections. But in richer villages with a large revenue, provided this is used at least in part to provide services to villagers, interest in elections often declines. (Oi and Rozelle 2000: 513-4, 531, 528, 539) Shi observes that the situation of elections in richer villages leads to the conclusion that ‘[r]apid economic development may even delay the process of political development’ by helping to consolidate the power of incumbent leaders. By contrast, in the poorest areas, people are often too busy finding ways to survive, or to leave the area for work to engage much in politics. Farmers in middle-income places are most likely to want a stake in how the money collected from them for public projects is spent. (2000: 245-6) According to Shi, the spread of village elections also reflected the changing economic environment in the countryside. ‘As peasants changed roles from “recipients” of resources to “providers” of resources for local administration, they naturally demanded inputs into the decision-making process.’ (Shi 2000: 245)

45


One reason for the relative lack of interest in village elections even when they are competitive is that however democratic the VC elections, they have little or no impact on policy-making at higher levels that affects village life. Just in terms of the conduct of elections, deciding factors in determining the conformity of the process with the relevant laws is the degree of attention higher level officials have given to the village in question, the amount of training provided to local officials and the experience amassed through repeated elections. Other elements contributing to the degree of competition and openness in the election process include the concentration of economic and political power in the village in question, with more ‘pluralistic’ villages more likely to hold more competitive elections. (Thurston 1998: 40-2)

Under the 1998 Organic Law on Villagers’ Committees, villages may enact local charters and regulations relating to their self-governance. (art. 20) In practice, such regulations often reflect the priorities of township leaders rather than of villagers, particularly the desire to suppress and contain disputes.38 According to Fu, the main goal of such village rules has been ‘to prevent crime and other unlawful activities and to contain conflict within the villages’. In some places such local rules may violate state law, such as by prohibiting religious practice in the name of eliminating ‘superstition’ or by requiring that women who marry someone outside the village must return any land they have been allocated. Some also merely impose fines for crimes including rape. Fines levied may go to support township legal institutions or become a source of income for village leaders. (Fu 2002: 190-1) —Elections to urban residents’ committees

In recent years, there have been some experiments with competitive election of urban residents’ committee (RC) members. Although RCs are included in art. 111 of the 1982 Constitution and the Organic Law of the Urban Residents’ Committees of the PRC passed in December 1989 (coming into effect on January 1, 1990)39 is very similar to the Organic Law on VCs, the functioning of RCs has generally received much less attention. Apparently the NPC is currently in the process of revising the Organic Law on RCs.40 According to the law, RCs cover 100-700 urban households, are supposed to be composed of elected members, and answer to a residents’ assembly. In practice, however, RC members have generally been appointed by local government and Party organs. (Horsley 2001) RC members depend on stipends provided by local governments and their only potential resource base is businesses they run or fee-paying services they provide.41 RCs have an important monitoring function in terms of keeping track of residents of their catchment area. They are also responsible for local security, dispute mediation, birth control and public health, environment and sanitation, legal education and social services.42 (Choate 1998: 16-25)

In 1999, the MoCA launched experiments in 20 cities on ‘fresh approaches to urban grassroots self-governance’ including contested elections to RCs. Often the procedures used have been those developed for VC elections. In some cities, RCs are being merged to create larger ‘communities’

38 Rural officials are under enormous pressure from their superiors to prevent collective grievances from being taken to higher levels and to avoid the emergence of any civil disturbances. In some areas, local officials may be subject to fines if such events occur in the areas for which they are responsible. (Fu 2002: 191-2) 39 In contrast to the 1987 VCs law, this was not for trial implementation only. 40 According to Xinhua, the NPCSC has been conducting inspections of the implementation of the 1989 Organic Law. (2000) 41 Choate estimates that 70 percent of their funds come from such ‘off-budget sources’ and 30 percent from local government offices. (1998: 27) 42 In these two latter areas, RCs often provide fee-paying services to residents.

46


composed of thousands of households. (Horsley 2001) In 20 pilot contested RC elections in Guangxi Province conducted in 2001 and 2002, voter interest in polls in smaller cities was highest, whereas in larger cities there was ‘pervasive apathy for the democratic process’ as RCs play a lesser role due, it is claimed, to continued dominance of state-sector work units. However it seems that a similarly unenthusiastic response was reported from RC elections in Guangzhou in 2002, although the state sector is much less dominant in the city. (Hsieh 2002) —‘Electing’ Party secretaries

Another area of experimentation with elections in the rural areas emerged from Shanxi Province in the 1990s, where protests against corrupt and abusive village Party leaders led to a system of subjecting candidates for office in village Party branches to a ‘vote of confidence’ or ‘vote of recommendation’ prior to the formal intra-Party elections for these posts. While according to the CCP constitution grassroots Party leaders should be elected,43 in practice township Party committees usually choose their candidate and village Party members go through the formality of ‘electing’ the person as Party secretary. In some places, the CCP has conducted opinion polls to determine attitudes towards different candidates for local Party leadership positions, but the results are rarely made public, and thus do not bind township leaders in making their selection. (Li 1999: 103-109)

Under what became known in Shanxi as ‘the two-ballot system’, however, open village appraisal meetings were held at which incumbent Party secretaries and branch members reported on their work, answered questions from villagers and were subjected to a vote of confidence, conducted by secret ballot with the results tabulated and made public immediately. (Li 1999: 109-114) Some variants of this system were also used in the province, including a dual vote system in which local Party members and villagers vote separately on their recommendations for Party officials; and the holding of meetings at which self-nominated candidates for Party posts present campaign speeches to villagers prior to a vote. Although the Shanxi experience has spread to some parts of neighbouring provinces, opposition from the CCP Organization Department has meant that it has not been publicized and thus has not spread more widely, although some provinces have been adopting similar practices to increase accountability of local Party officials. (Li 1999: 114-117) However, in Fujian Province, by 2000 all village Party secretaries were reportedly subjected to an initial ‘confidence vote’ in which all village voters could cast ballots, and similar procedures were being used in some areas of Sichuan, Anhui, Henan and Shenzhen. (Horsley 2001)

43 The 1992 Provisional Regulations Concerning the Election Work of Grassroots Party Organizations provides details on how such elections should be conducted. (Li 1999: 108)

47


Appendix III d Background to Enactment of Article 31 The incorporation of Article 31 into the 1982 Constitution represents the expression in legal form of the CCP’s new policy regarding reunification of the mainland and Taiwan in the wake of normalization of US-China relations. But it can also be seen in the context of the shift towards real recognition of autonomy in minority areas, which Nathan calls “[p]erhaps the most substantial change in the area of political rights” in the 1982 constitution. (Nathan 1986 118) Another factor that undoubtedly contributed to the enactment of Article 31 was the general shift towards creating a legal framework for government that the 1982 Constitution represents. (Jones 1985 733-5) The Communique of the crucial December 1978 Third Plenum of the Eleventh Central Committee (at which Deng’s faction ousted the “whateverists” around Mao’s “chosen successor” Hua Guofeng and launched a programme of reforms) stated: “Following the normalization of relations between China and the United States, the prospect of the sacred territory of Taiwan returning to the embrace of the motherland thus realizing the great task of reunification is once again at the forefront.” No more was heard of the previous slogan, “liberate Taiwan.” On January 1, 1979, the NPC Standing Committee issued an Open Letter to Taiwan Compatriots which for the first time articulated the new policy of peaceful reunification which would involve “respecting Taiwan’s current situation and the opinions of various sectors in Taiwan.” That same month, Deng Xiaoping said, “As long as we can reunify the nation, we will respect the reality and the current system [in Taiwan].” (Wang and Guo 1998 26) The Third Plenum position regarding Taiwan emphasized that negotiations over the island’s future would be on an equal basis. (Kao 1989 74) However, at this stage some ambiguity remained about the permanence of the arrangements proposed for Taiwan: some commentators were saying that although Taiwan would initially retain its system, socialist reform would be implemented gradually. The PRC’s repossession of Hong Kong and Macau was not even mentioned at this early stage, with Chinese officials making clear up to 1979 that they wished to continue with the status quo due to the possible economic benefits of Hong Kong and Macau to China in its new modernization drive. (Kao 1989 75-6) On September 30, 1981, NPCSC Chairman Ye Jianying gave a speech outlining a nine-point policy on peaceful reunification, which laid out the essential elements of “one country, two systems.” The speech included the following elements: after reunification, Taiwan could become a special administrative region enjoying a high degree of autonomy and could retain its own military forces, while the central government would not interfere with Taiwan’s local affairs; Taiwan’s current social and economic systems would not be changed, its way of life would not be altered and it could continue its economic and cultural relations with other countries, while rights of ownership over private property, buildings and land, legitimate inheritance rights and foreign investment would not be violated; and representatives of the Taiwan authorities and other sectors could participate in the governance of the nation. However, it was Deng who first articulated the concept of “one country, two systems” when he used the phrase “one country with two types of systems” in a conversation with an American visitor in 1981. These ideas led to the enactment of Article 31. (Wang and Guo 1998 26). According to another author, the “one country two

48


types of systems” phrase was first used by Deng in September 1982 during a meeting with visiting UK Prime Minister Margaret Thatcher. (Ieong 1996 93) Chinese writers generally credit Deng with being the creator of the one country, two systems idea. For example, Zhang Shujun writes: “The great concept of ‘one country, two systems’ is the most creative aspect of Comrade Deng Xiaoping’s legal thinking.” (Zhang 2002 84) Wang and Guo list four reasons why the one country, two systems concept is an important contribution not just for its political significance, but for its constitutional meaning and value. First is that it represents a breakthrough in the structure of the Chinese state to “a special unitary form unlike either federalism or the ordinary unitary model.” Second, it developed the theoretical line for unification in the current constitution. Third, it requires that China establish a new form of legal system, separating sovereignty and the power to rule, with the constitution playing a crucial role in regulating the relations between central and local power and the different legal systems. Fourth, it requires amendment of the current constitution to bring it into line with how one country, two systems has developed. (1998 28) It seems that the inclusion of Art. 31 in the Constitution was not considered controversial. (By contrast, minority regional autonomy was highly controversial and the subject of many debates). Cai Dingjian’s account of key debates that occurred in the process of drafting the 1982 Constitution does not mention this issue as being one of them. (2004: 68-75) This may be an indication that the new CCP policy on Taiwan enjoyed broad support and was thus relatively uncontroversial. As Weng points out, neither Peng Zhen nor Hu Sheng (deputy secretary general of the Committee for Revision of the Constitution) mentioned this provision as a highlight in their introductions to the draft constitution when it was made public in April 1982. “This cannot be an oversight as other propaganda from PRC sources has given national unification emphasis. The issue is to be kept alive, but its priority apparently is not too high.” (1982: 506) However, Peng did discuss this issue in his report on the Constitution when it was actually passed by the NPC, particularly focusing on Taiwan, with no mention being made of other regions to which Art. 31 might be applied. (Peng 1982: 13) It may be hard to sustain the idea that Art. 31 was envisaged as having any broader application than as a solution to the Taiwan question. The provision is clearly linked to the preambular statement: “Taiwan is part of the sacred territory of the PRC. It is the lofty duty of the entire Chinese people, including our compatriots in Taiwan, to accomplish the great task of reunifying the motherland.” (Constitution, Preamble paragraph 9) Cai describes Art. 31 as being specifically designed to incorporate into the PRC distinct areas of the country “where, for historical reasons, socialism had not been practiced” and allow them to continue their existing systems, capitalism in particular. (2004: 202) A report from the time cites an NPC deputy as stating that the autonomy of SARs differs from national and ordinary local autonomy. (Xinhua 29 Nov. 1982) The relevant constitutional provisions are as follows: Article 31 [Special Administrative Regions] The state may establish special administrative regions when necessary. The systems to be instituted in

49


special administrative regions shall be prescribed by law enacted by the National People's Congress in the light of the specific conditions. Article 62 [Functions and Powers] The National People's Congress exercises the following functions and powers: 1. to amend the Constitution; 2. to supervise the enforcement of the Constitution; 3. to enact and amend basic statutes concerning criminal offenses, civil affairs, the state organs, and other matters; 4. to elect the President and the Vice President of the People's Republic of China; 5. to decide on the choice of the Premier of the State Council upon nomination by the President of the People's Republic of China, and to decide on the choice of the Vice Premiers, State Councillors, Ministers in charge of ministries or commissions, and the Auditor General and the Secretary General of the State Council upon nomination by the Premier; 6. to elect the Chairman of the Central Military Commission and, upon nomination by the Chairman, to decide on the choice of all the others on the Central Military Commission; 7. to elect the President of the Supreme People's Court; 8. to elect the Procurator General of the Supreme People's Procuratorate; 9. to examine and approve the plan for national economic and social development and the report on its implementation; 10. to examine and approve the state budget and the report on its implementation; 11. to alter or annul inappropriate decisions of the Standing Committee of the National People's Congress; 12. to approve the establishment of provinces, autonomous regions, and municipalities directly under the Central Government; 13. to decide on the establishment of special administrative regions and the systems to be instituted there; 14. to decide on questions of war and peace; and 15. to exercise such other functions and powers as the highest organ of state power should exercise. —Ieong, Wan Chong 1986 “One Country, Two Systems” and the Modern Constitutional Science (“yi guo liang zhi” yu xiandai xianfaxue) (Macau: University of Macau Press) —Jones, William C 1985 ‘The Constitution of the People’s Republic of China’ Washington University Law Quarterly Vol. 63 —Kao, Lang 1989 One Country, Two Systems: Its Theory, Practice and Feasibility University of Maryland Ph.D thesis —Nathan, Andrew J 1986 ‘Political Rights in Chinese Constitutions’ in R. Randle Edwards et al (eds) Human Rights in Contemporary China (New York: Columbia University Press) —Peng, Zhen 1982 “Report by Peng Zhen” Xinhua 5 December 1982 (BBC Summary of World Broadcasts, FE/7202/C/1-16) —Wang, Shiru and Guo, Chunming 1998 ‘”One Country Two Systems” and China’s Current Constitution’ (“yi guo liang zhi” yu zhongguo xianxing xianfa) Shanxi University Journal (Philosophy and Social Science Edition) (shanxi daxue xuebao [zhexue shehui kexue ban]) No. 2 1998 26-28 —Weng, Byron 1982 “Some Key Aspects of the 1982 Draft Constitution of the PRC” China Quarterly No.92, 1982 492-506 —Xinhua 1982 “The New Constitution and the Issue of Reunification” 29 November 1982 (BBC Summary of World Broadcasts, FE/7198/C/11) —Zhang, Shujun 2002 ‘Preliminary Exploration of Deng Xiaoping’s Thought on the Legal System’ (Deng Xiaoping fazhi sixiang chutan) Journal of Qinghai Junior Teachers College No. 3

50