CHINAS NATIONAL AUTONOMY LAW AND TIBET: A Paradox between Autonomy and Unity By DR. LOBSANG SANGAY
TheChinese Constitution and particularly the Regional National Autonomy Law of 1984 (RNAL) is purported to guarantee autonomy for minorities. However, the law is challenged in its interpretation and implementation primarily due to the paradox between the concept of unity and autonomy. More often than not, when there is a conflict, it is unity that trumps autonomy. With Tibetan experience as a case study, I will argue that thepractice of autonomy for Tibetan people in fact is limited in all threebranches of the government, i.e., executive, legislative, judiciary, and most importantly in the local Communist Party.
The concept of autonomy and unity are defined as follows: Autonomy: The people of minorities are their own masters exercising the right of selfâ€”governance to administer local affairs and internal affairs of their own ethnic groups. Unity: a) Unity of the motherland, b) Unity under the leadership of the CPC, c) Unity between minority nationalities and Han and d) Unityamong minority Nationalities. China's White Paper on Tibet,2 states that regional ethnic autonomy is established 'in order to protect the equal and autonomous rights of ethnic minoritiesâ€¦.so that the people of ethnic minorities are their own masters exercising the right of self-government to administer local affairs and internal affairs of their own ethnic groups.'3 To realize the concept of autonomy, China promulgated a law titled Regional National Autonomy Law4 (RNAL) and the preamble restates that 'Regional ethnic autonomy embodies the state's full respect for and guarantee of the right of the ethnic minorities to administer their internal affairs and its adherence to the principle of equality, unity and common prosperity for all its nationalities.'5 What intrigues me is the term 'unity' in the Preamble of the RNAL because the idea that one could have autonomy but must adhere to unity is paradoxical at best and contradictory at worst--the very idea of autonomy or 'self-governance' means the state should not interfere in the minorityâ€™s internal affairs, and this, in turn, creates diversion from unity. If you implement unity of the state, which emphasizes integration and oneness, then it inevitably undermines autonomy. Especially given Chinaâ€™s extra sensitivity with regard to the securityand stability of the state, implementation of autonomy is often interpreted as a challenge to the unity of the Motherland. Following this line of thinking, the conditionality of 'unity' in the very law to provide 'autonomy' raises questions about the validity and sustainability of the concept of autonomy as prescribed in RNAL. I argue that there is far less autonomy than what the White Paper proclaims and Regional Autonomy Law prescribes. Most specifically I argue that the cause of the limited autonomy is the by product of the very paradoxical provisions in the RNAL and far more so in its implementation. To substantiate the paradox between autonomy and unity, I will begin by examining the background to the concept of autonomy in the Chinese constitutions. Then I will analyze RNAL of 1984 and interpretations of certain provisions, especially those addressing issues of executive, legislative and judiciary powers. In this analysis I argue that unity trumps autonomy to the extent that judicial autonomy is almost non-existent, legislative power debatable, and executive power limited. BACKGROUND: Imitating the Soviet Constitution, the Manifesto of the Kuomintang's (KMT) First National Congress in 1924, provided the right of self-determination to minorities in China, including the right to secede. At the time, KMT and CCP were engaged in civil wars. By adoptingthe Soviet Constitution. The KMT strategied to lure support of the minorities. However, the original stance of KMT was not autonomy but assimilation. This was touted by none other than the founding father Sun-Yat-Sen, who lauded and advocated the successful 'American melting pot' strategy towards frontiers and minorities.10 Clearly, it was political expediency rather than the consideration for minorities that determined provisions on the secession and self determination for minorities in the KMT constitution. Soon, like the Soviet, KMT in volte-face shifted to 'mutual co-operation and unity' among the nationalities, and the central Executive Committee of the Congress disparaged the principle of self-determination.11 As early as 1922, Communist Party of China (CPC) adopted policies on minorities.12 In 1931, trying to outdo the KMT, the Basic Law (Constitution) of the Chinese Soviet Republic (CSR) of Chinese CommunistParty explicitly provided in Article 14 'the right of national self-determination of the national minorities in China' â€¦ including the right toâ€¦ separation from China.'13 In 1949, like the Soviet and KMT, the CCP backed away from such policies. At that time, the 'Common Program,' adopted by the Chinese People's Political Consultative Conference, provided 'regional autonomy' (article 51) to 'concentrated minorities' and added 'unity,' which prohibited the splitting away of minorities.14 Similarly, the 'General Program' of 1952,15 and the 1954 Constitution of China included both autonomy and unity towards minorities, continuing Chinas paradoxical and contradictory approach inits various constitutions.16 The justification of the switch from the right of secession to that of autonomy was as that after the first Opium War, China suffered at the hands of foreign invasion and occupation. This is illustrated by the 1940s invasion of Manchuria by Imperial Japan,17 Outer Mongoliaâ€™s declaration of independence as supported by the Soviet Union, and the fear that Xinjiang might join the Soviet under the guise of self determination, to be followed by other minorities. An irony has to be noted that when the minorities might have asserted secession or the selfdetermination, with or without foreign help, the provisions were reneged and replaced with 'autonomy but unity.' II: PROMULGATION, INTERPRETATION AND IMPLEMENTATION OF RNALReflecting the liberal and progressive phase of the CCP policy towards minorities,'â€¦to restore the Leninist socialist 'golden age' of the 1950s, in 1984, the Party-state promulgated the Law of Regional NationalAutonomy (LRNA).'19 Despite giving several concessions, the very preamble of the RNAL makes it clear that 'unity' trumped 'autonomy.' Clearly rReinforcing the mandatory requirement of the 'unity,' Article 5of RNAL20 states that the autonomous self-governance must uphold the 'unity' of the country. Like the Article 115 of the Constitution, the same Article 5 further undermines autonomy by requiring guarantee that undefined 'other laws' are observed and implemented by autonomous government of minorities. The law on autonomy is the stateâ€™s special arrangement to preserve and protect minorities but when it is equated orconsidered lesser than 'other laws' (which could mean any state, departmental or local laws), it lessens gravity of the concept of autonomy in China. Further demonstrating that the concept of autonomy has been diluted and undermined, Article 7 of the RNAL states that 'the organs of self-government of ethnic autonomous areas shall place the interests of the state as a whole above anything else and make positive efforts to fulfill the tasks assigned by state organs at higher levels.' Requiring autonomous self-governance to place the undefined 'interest of the stateas a whole above anything else,' (which could be interpreted in many ways) and fulfill the tasks assigned by state organs at higher levels (by departments etc.), further undermines the concept of autonomy. In theory, autonomy requires a separate administrative arrangement whereby ones people could be treated and governed as per their distinctiveness. When the state and state organs supersede or trump autonomy, then they undermine the very idea of autonomy and special treatment.21LEGISLATIVE POWER: The extent of legislative autonomy is debatable, because on the face of it, there is room for autonomy. RNAL specificallyallows the autonomous congress and government to amend and modify national laws to suit the local culture and conditions (Constitution Article 116 and Article 19 of the MNA). However, clear emphasis of the 'unity' the following paragraph explicitly states that any modification of the national law, must be 'reported' to and 'approved' by the Standing Committee of the National People's Congress. In other words, both by 'delaying or denying,' NPCSC could undermine autonomy. Such conditionality makes ineffective any local legislative modification because unless it receives an 'approval' (deny) from the Standing Committee, the authority local law remains moot. By simply not responding (delay) to the 'report,' the Standing Committee effectively kills local legislation. Such dependency on the higher up institutions essentially nullifies autonomy for the legislative power of the Autonomous regions. On the other hand, it is interesting to note that the Provincial governments in other parts of China need to simply 'report' to the Standing Committee of the National People's Congress (Constitution Article 100) and can implement modified national laws.26 By requiring 'approval' for the autonomous regions while requiring only to 'report' for the provinces, it is clear that the provincial governments appear toenjoy more autonomy in amending and modifying national laws than autonomous governments. (Lin Feng 157) It is not a coincidence that Han Chinese is the majority in the provincial governments while minorities dominate the population in the autonomous regions. The conditionality toseek 'approval' for minorities reinforces the argument that the Chinesegovernment's extra sensitivity on the issues of security and lead it totrump 'unity' over 'autonomy.' Furthermore, the role of the CCP in enactment of legislation limits the power of the Autonomous regions to introduce laws, and also to amend national laws to suit the local conditions. According to the 1991 document, 'Certain Opinions on Strengthening the Party Leadership over the Legislative Work 'the Politburo and CCP congress should review constitutional amendments before submitting to the NPC and also, autonomous regions require 'approval' of laws covering political matters. The CCP influence is conducted by penetrating NPC leadership, setting meeting agendas, and requiring oversight of the drafting processof the laws.27 In principle, no law should be in conflict with the Party's interests and/or inconsistent with Party policy.28 Thirdly, in the TAR's Peoples Congress,33 among the eighteen Chairmen and Vice-Chairmen, fifteen are Tibetan, two Chinese, and one Tibetan Muslim. However, in the Standing Committee of the Regional Peoples Congress (the legislative body which represents the Congress and meets throughout the year to legislate laws), Tibetan and other minority representation is 69.23%, thereby diluting their impact with more than 30% representation of Chinese members-- even though the non-Tibetan population (including Han Chinese) is officially estimated at less than 8% in TAR. This disproportionate representation of the minority population in the Standing Committee indicates the extent that ethnic group controls influence in the decision making process of the legislature.34 EXECUTIVE POWER (Article 15, 17-18?): The executive or administrative power of the RNAL puts emphasis on employment of minority officials, specifically requiring equitable representation of minorities in the government (Article 17, 18, 22). TheRNAL specifically requires that the Chairman of the Autonomous Region, the prefect of an autonomous prefecture or the head of an autonomous county shall be of minority nationality (Article 17). Also. other positions of administration require equitable representation of the minority and other minorities in the area. It is not defined what â€œequitableâ€ representation means--it could range from 50% to 90%. Interestingly, only 57% of the Chairmen and Vice-Chairmen of the TibetanAutonomous Region are Tibetans and other minorities, which means 43% ofthe leaders of the government of the TAR are Chinese. Of the fourteen Governors and Vice-Governors of TAR, seven are Chinese and the other seven are Tibetan, thereby having exactly 50% power sharing arrangement between the two.37 It is to be noted that of the departments (up to 29),the most powerful trio-- the Organization/Personnel under the TARPC, Finance, and Planning – often remain the exclusive domain of Chinese officials, with only symbolic deputy positions given to the Tibetan officials.38 The Communist Party of TAR, which is the power center of the region, consists of the Secretary and eleven Deputy Secretaries. Among these positions, seven are filled by Han Chinese and five by Tibetans. Again the Chinese representation is more than 65% and Tibetans are left with only 45% in the power center.39 JUDICIARY (Article 46-47) The MNA does not make the distinction between courts in the autonomous regions and those in other parts of China. It provides two provisions onpeopleâ€™s courts and procuratorates (Article 46, 47) without any distinction to minority nationality culture, local conditions or even traditional laws. As the Chinese judiciary is organized in a hierarchical order with the Supreme Court at the highest level followed by others in a descending order, there is no special treatment towards courts at minority areas. As the lower court is subject to the higher court, the courts in the Minority areas are subject to the higher court,especially supervision by the Supreme Court (Article 46). Therefore, there is no room for judicial independence or even autonomy. Moreover, the judiciary is partly dependent on the National People's Congress for its appointment and budget, including salaries, and is susceptible to political influence. Similarly, the local ??? court which is legally subject to the Supreme Court, is politically susceptible to local congress, thereby leaving less room for judicial autonomy. In Tibet, as in other parts of China, many judges are former PLA officers (including Tibetans), thereby representing conservative sections of the society, particularly concerning national security and social stability. As a result, it is more likely that their ideology andphilosophy tilts towards emphasizing 'unity' over 'autonomy' when they are making decisions over cases where there is competition between the two. Other judges are non-Tibetans and most likely Han Chinese, whose views on 'unity' and 'autonomy' are likely to lean more towards the former than latter. Not to be outdone, in every judicial court, similar to all branches of governmental agencies, units of the Communist Party influence the decision making process of judges. It is more likely that the Communist party often favors 'unity' over autonomy. As all these facts indicate, room for judicial autonomy is almost non-existent. It isno wonder that there are more convictions on political matters, than redress because there is hardly any room for such issues. Tibetan judges, the potential constituents to favor autonomy, are constrained bythe fact that too much emphasis on autonomy could be interpreted as promotion of 'local chauvinism' which is illegal and subject to disciplinary action by the higher ups both in the judiciary and through CPC. The head of the TAR's People's court is a Tibetan and the head of the Peoples Procurates of TAR is a Chinese. Of the People's Court and People's Procuratorates at the regional, perfectural (city) and county levels, it is to be noted that combinationof both Tibetan and other minorities have only 69.82% judicial representation, which means, the Chinese representation is more than 30%. Furthermore, the figure calculates county levels, where Tibetans are likely to be an absolute majority, which means further increase in Chinese judicial appointments and less Tibetan representation at the regional and prefectural level. In conclusion, it is established that Tibetans do not enjoy autonomy in Tibetan areas in China. Limited autonomy is far less than what was originally promulgated in the Chinese government policies, i.e., the right to secession and self-determination, which were replaced with the concept of autonomy but unity. In drafting the Minority Nationality Act of 1984, autonomy was further diluted by attaching the concept of unity,thereby creating paradoxical and contradictory approach to autonomy forminorities. When it came to implementation, autonomy was further undermined with expansive interpretation of provisions favoring unity while narrowly interpreting autonomy, specifically in the personnel affairs, which were disproportionately dominated by Chinese cadres over Tibetans. Therefore, there is only some degree of Executive autonomy, limited Legislative autonomy and hardly any Judicial autonomy. In sum, Tibetans are not yet 'master of their own affairs exercising the right of self-governance to administer local affairs and internal affairs of their own ethnic groups,' as promulgated and prescribed in the Chinese constitution and Minority Nationality Act of 1984.
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