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【Journal Name】 China Law【Title】 Regulatory and Institutional Framework of Regional Autonomy for Ethnic Minorities in China
Regulatory and Institutional Framework of Regional Autonomy for Ethnic Minorities in China
【Author】 Yu Xingzhong【Area of Law】 Local Autonomy Law
【Year】 In 2009【Issue】 2
【ESummary】 56
【Full text】 2013/1/26 11:21:25
【Remark】 1510090339
【Reference】   INTRODUCTION
Regional autonomy for ethnic minorities, one of the fundamental institutional arrangements for handling multi-ethnic relations, has been practiced in the People's Republic of China (PRC) for more than 50 years. Although the idea and practice of ethnic regional autonomy had a long history in China well before the PRC, the current PRC embracement of such an arrangement began in the early 20th century during the proletarian revolution led by the Chinese Communist Party(CCP).

To date, the Chinese government has identified 56 ethnic groups in China. As the majority of the population belongs to the Han ethnic group, China's other 55 ethnic groups are customarily referred to as the ethnic minorities.

According to the fifth national census conducted by the Chinese government in 2000, the population of all the 55ethnic minority groups totaled 104.49 million, accounting for8.41 percent of the total population of China. In some cases minority peoples are found living in concentrated communities in areas inhabited mainly by the Han people, but mostly they live together in an area that is thought to be theirs. This distribution pattern has taken shape throughout China's long history of development, as ethnic groups migrated and mingled.

China has a landmass of 9.6 million square kilometers, making it almost as large as the combined nations of Europe. Although small in number, the peoples of the various ethnic minorities inhabit 50 to 60 percent of the country's territory. Ethnic minorities live in a wide expanse of land with a sparse distribution of population. Many minority peoples have traditionally established their villages in mountainous and pastoral areas, on high plateaus and in deep forests. The areas they inhabit have a wide range of products and abundant mineral resources, and are also strategically important as border regions for the whole country. They live in every province, autonomous region and municipality directly under the central government, and in most county-level communities two or more ethnic groups live together. Ethnic minorities mainly live in these autonomous regions and provinces: Inner Mongolia, Xinjiang, Tibet, Guangxi, Ningxia, Heilongjiang, Jilin, Liaoning, Gansu, Qinghai, Sichuan, Yunnan, Guizhou, Guangdong, Hunan, Hebei, Hubei, and Fujian.

In February 2005 the PRC government formally issued its first white paper on the nationwide situation of the ethnic regional autonomy in China,which, quoting statistics, tracing developmental phases, and comparing vertically the present and the past of the autonomous areas, hailed the practice of this institutional arrangement as a great success. The Chinese institution and practice of autonomy for ethnic minorities have been summarized as having three salient features. First, it is an organic combination of ethnic factor and the regional factor, which means that the Chinese model of ethnic autonomy is not merely ethnic, but also regional. Such an arrangement, it is believed, provides guarantees for the ethnic minorities to manage their own affairs by themselves and at the same time promotes equality and unity among different ethnic minorities. Secondly, it is an organic combination of political and economic factors which allows minority areas to develop their economies as well as friendly relations based on equality, unity and mutual assistance, and which guarantees minonty rights and safeguards the unity of the country. Thirdly, it is an organic combination of historical and present factors which balances historical conditions and practical needs of the autonomous areas in establishing such areas and planning for its future.

Obviously, these are very important features of the Chinese system, but they are also general statements, more philosophical or scientific than useful in helping us to understand the workings of this Chinese system. Questions such as how autonomous the autonomous areas in China are, what mechanisms have been instituted for solving disputes among the ethnic groups and between the central government and the autonomous areas and, most fundamentally, what are the basis for practicing such autonomy, will have to be asked in order to get a clear understanding of this system.

I. THE REGULATORY FRAMEWORK

Regional autonomy for ethnic minorities in China is regulated by three types of normative instruments: the PRC constitution, the Ethnic Regional Autonomy Law and other relevant laws, and the party/state policies.

Constitutional provisions for autonomy

The Chinese constitutional system, modeled on written constitutions of the major countries of the world, with the National People's Congress (NPC) concurrently being the supreme power organ and the legislature, is quite sensitive to state sovereignty and the central power. The PRC has had four formal constitutions (1954, 1975, 1978 and 1982) and a provisional constitutional document called Common Program (1949). The 1982 constitution, which is currently in force, has been amended four times, in April 1988, March 1993, March1999, and March 2004 respectively, to reflect the changing circumstances since the economic reforms started. These constitutions, unlike their counterparts in liberal societies, serve as the programs of the party/state for ideological guidance and as political documents that reflect government policies.

The current constitution, however, has extensive provisions with regard to the regional autonomy for ethnic minorities. For instance, Article 4 of the PRC Constitution provided that regional autonomy is practiced in areas where people of minority nationalities live in compact communities, and that in these areas organs of self- government are established for the exercise of the right of autonomy. It also provides that all the national autonomous areas are inalienable parts of the People's Republic of China. The people of all nationalities have the freedom to use and develop their own spoken and written languages, and to preserve or reform their own ways and customs. Article 115 of the PRC Constitution provides that the organs of self-government of autonomous regions, prefectures and counties exercise the functions and powers of local organs of state as specified in the PRC Constitution. At the same time, they exercise the right of autonomy within the limits of their authority as prescribed by the PRC Constitution, the Ethnic Regional Autonomy Law and other laws, and implement the laws and policies of the state in the light of the existing local situation.

The Ethnic Regional Autonomy Law

The 1984 Ethnic Regional Autonomy Law, the first formal law of the PRC systematically regulating ethnic affairs, was based on the 1982 PRC constitution and the party/state policy on ethnic affairs. Although work on ethnic affairs has always been high on the party/state's political agenda, with the exception during the Cultural Revolution, such affairs were traditionally handled by policy, rather than law. As early as in the 1930s the idea of ethnic regional autonomy, which was first legitimized by early constitutions of the Nationalist Government at the beginning of the 20th century, was already practiced by the CCP in some areas under its control. Later in the 1940s autonomous governments were set up in liberated areas of Shaanxi province. It was not until 1984, however, that the first such law was enacted under the auspices of the late leader Deng Xiaoping. Having been in force for more than16 years, it was tabled for revision at the 19th Session of the NPC Standing Committee in October 2000, but the revisions proposed were not considered ready until the 20th Session held in February 2001.The Ethnic Regional Autonomy Law as a basic law, a mini-constitution, for ethnic minority regions is meant to provide legal basis for the political structure and economic development in such regions.

The revised Ethnic Regional Autonomy Law deleted provisions pertaining to the command economy and has added provisions encouraging development of non-state owned economies and market economy. It also has added provisions concerning preferential treatment for ethnic minorities in the fields of investment, financial policy and employment. It also provided for compensation for exploitation of natural resources of the autonomous regions by the state, exemption of funds to match the funds allocated by the state to help the autonomous regions and greater freedom for the autonomous regions to engage in trade with foreign countries.

As the Ethnic Regional Autonomy Law is a basic law that sets out general framework for establishing the autonomous areas, delineating powers and functions of autonomous governments and reiterate in the form of a legal document the party/state policy on ethnic affairs and the relationships between the central government and the autonomous areas, it is mainly composed of what H.L.A. Hart termed “secondary rules” which are power-conferring rules that do not provide for remedies or liabilities for failure to comply. The enforcement of this law, therefore, rests entirely on the conscience and awareness of the departments concerned. If a state organ fails to implement such a law, there is no legal basis to hold such an organ responsible and hence no remedy can be sought. For instance, Article 65 of the revised Ethnic Regional Autonomy Law provides that while exploiting resources and undertaking construction in an autonomous area of ethnic minorities, the state shall give consideration to the interests of these areas, make arrangements favorable to the economic construction there and pay proper attention to the productive pursuits and the life of the ethnic minorities there. If a state organ at higher-level does not comply with this provision, the minority area concerned may not have the right legal recourse for coerced enforcement. In reality, the state often failed to take into consideration the interests of the local ethnic minorities when exploiting local resources. In addition, a basic law like this is constitutional by nature and as such, like PRC constitution itself, is hardly actionable. Past experience has shown that the Ethnic Regional Autonomy Law has rarely been cited to decide court cases.

The relationship of the laws of the autonomous region to the national constitution

PRC jurisprudence, an extended version of legal positivism, sees legal rules organized in a hierarchy with the PRC Constitution at the top, as the ultimate authority of all legal rules within the Chinese legal system, followed in descending importance by basic laws enacted by the NPC, administrative regulations and rules made by the State Council and its ministries and local regulations and rules made by local people's congresses and governments- All basic laws, administrative and local regulations and rules are required to conform to the provisions of the PRC Constitution, even though unconstitutionality as an issue has only in recent years become a concern for China's law makers and leaders. Indeed, if a strict conception of unconstitutionality is adopted, the policies and practice of economic reforms since 1978, which so greatly improved the life of the peoples of China, could be found unconstitutional.

Nevertheless, the status of the Ethnic Regional Autonomy Law is quite unambiguous. It is a basic law enacted by the NPC and, as with other basic laws, has the legal authority only second to the PRC Constitution. It is a national law that has to be honored by governments throughout the country, just like the basic laws for Hong Kong and Macao.

The PRC Constitution and the Ethnic Regional Autonomy Law have granted the autonomous regions the power to make regulations governing the affairs within each autonomous region and area, which may be a basic law for the region concerned. But so far none of the five autonomous regions at the provincial level, that is, Inner Mongolia, Xinjiang, Ningxia, Guangxi and Tibet Autonomous Regions, has made such regulations. They have made regulations focusing on particular aspects of the life within the autonomous areas, but a comprehensive set of regulations which could serve, probably not as the constitutions, but as the basic laws, have yet to be made.

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Even if such regulations were made, they would be basic laws made by autonomous regions and approved by the Standing Committee of the NPC. As such, they might be the highest law within the relevant regions, but would definitely be inferior to the PRC constitution in terms of legal validity. Theoretically they should not contravene the PRC Constitution and must be approved by the Standing Committee of the NPC before they go into effect. However, it is conceivable that such types of laws may not completely conform to the provisions of the PRC Constitution, as the PRC Constitution and the Ethnic Regional Autonomy Law do allow the autonomous areas to deviate somewhat from the general pattern.

The scope of the autonomous region to make and adopt its own constitution

Article 116 of the PRC constitution provides that people’s congresses of national autonomous regions have the power to enact autonomy regulations (zizhi fagui) and specific regulations (zizhi tiaoli) in light of the political, economic and cultural characteristics of the ethnic minority group or groups in the regions concerned. Such autonomy regulations and specific regulations of autonomous regions, however, must be submitted to the Standing Committee of the NPC for approval before they go into effect. Those of autonomous prefectures and counties must be submitted to the standing committees of the people's congresses of provinces or autonomous regions for approval before they go into effect, and they must be reported to the Standing Committee of the NPC for the record.

Interpretation and implementation of constitutional/legal provisions for autonomy

China has modeled its legal system on those of civil law countries where the power to interpret law is separate from the power to adjudicate. In common law countries, especially the United States, legal interpretation is mainly part of the judicial decision making or legal reasoning process and the power to interpret law is subordinate to the power to adjudicate. This is because the US practices separation of powers with the courts gradually evolved into the ultimate authority of the legal order, which has led to the judicial activism where judges are legitimate legal interpreters, despite the objection that judicial interpretation may in effect play the role of law-making. In China legal interpretation is an exercise of legislative power, rather than part of the judicial decision-making or legal reasoning process. As in many other civil law countries, the power to interpret law is formally mainly vested in the legislature and administrative agencies. Judges, especially lower court judges, do not have the power to interpret law. They have to submit any ambiguity or problem with regard to the application of certain rules to the Supreme People's Court for instructions.

Article 62 of the PRC constitution provides that the National People's Congress exercises the powers to amend the PRC Constitution, to supervise the enforcement of the PRC Constitution and to enact and amend basic statutes concerning criminal offences, civil affairs, the state organs and other matters. Article 67 of the PRC constitution provides that the Standing Committee of the National People's Congress exercises the powers to interpret the PRC Constitution and supervise its enforcement, to enact and amend statutes with the exception of those which should be enacted by the National People's Congress, to enact, when the National People’s Congress is not in session, partial supplements and amendments to statutes enacted by the National People’s Congress provided that they do not contravene the basic principles of these statutes, to interpret statutes and to annul those local regulations or decisions of the organs of state power of provinces, autonomous regions and municipalities directly under the Central Government that contravene the PRC Constitution, the statutes or the administrative rules and regulations.

It is quite clear that the NPC and the NPCSC are the legal authorities which can interpret and enforce the PRC Constitutional and legal provisions for the ethnic regional autonomy in China. However, while the power to inter ret the constitution is firmly held by the NPC and NPCSC, the power to interpret statutes was delegated by the NPCSC to a number of entities including the State Council, the Supreme People’s Court and the Supreme People's Procuratorates.

It would be natural for the NPC and the NPCSC to interpret the Ethnic Regional Autonomy Law, as the law is made by the NPC, but it would also be imaginable that, for specific cases, especially cases involving disputes the Supreme People's Court may be able to interpret it as well.

The Role of Policy

There is a discern able pattern in the history of PRC lawmaking and revision: regulation of a certain social relation usually starts with government policy and ends up with a piece of legislation. When the government feels there is the need to regulate certain social or economic activities, it will first issue a policy to govern it. After implementation of the policy for a certain period, the government then considers making trial regulations to make regulation of such activities a constant effort with predictability and consistency. Based on the experience of implementing the trial regulations, the government, when it considers time is mature, will make a formal law for such a field. That concludes the full cycle of legal regulation of a social or economic relation. If the government policy changes, however, the law will need to be revised. As the Chinese government changes its policy frequently, the law also needs to be revised frequently. Hence the official mentality is that law revision is as important as law making. This policy driven legislative process actually has created an impression that policy is still more important than law and people would have more expectation of the party/state policy than law.

“Rule of policy” may be a characteristic for all transitional societies in which social and economic relations are constantly and drastically changing and the legal system responds to such changes by making itself flexible and less predictable. The law reforms corresponding to the economic reforms in China took as its major task, among other things, moving away from reliance on the party/state policy to reliance on law.

Acknowledging the complexities of the relationships between policy and law and granted that in any legal system policy is indispensable, as Ronald Dwork in has argued that in adjudication judges not only rely on rules and cases, but also on principles, policies and purposes, but in a well-developed legal system the role of policy is in general limited only to the extent that policy compliments law rather than replaces or drives law.

Ⅱ. THE INSTITUTIONS OF AUTONOMY

The structure and composition of government institutions at the autonomous level and relations between them

Local governments in the autonomous areas are called the organs of self-government, which perform a dual function, as local arms of the central government and as the self-governing authority of the autonomous areas. The organs of self-government of autonomous areas refer to the people’s congresses and people's governments of autonomous regions, autonomous prefectures and autonomous counties. The establishment and organization of organs of self-government of autonomous areas are based on the fundamental principles of the people's congress system, but these organs are different from ordinary local state organs in that they have some limited discretion in implementing the central government’s policies over ethnic matters in their areas.

In addition to the local people's congresses and local governments, there are also local people's consultative conferences, local discipline inspection commissions and local committees of the CCP in the autonomous areas. As a rule, the local committee of the CCP assumes general leadership in all aspects of the life of the autonomous areas.

The division of labor follows the pattern of the power organs and the government at the state level. The people’s congress of an autonomous area acts as the supreme power organ and the legislature of that area, exercising an extensive array of powers, including appointing local government leaders and making local regulations. The government of the autonomous areas discharges administrative duties. The people's consultative conference of autonomous areas performs the role of advisers to the self-government as well as coordinators of interests of various political forces and social groups. The discipline inspection commission of the CCP of autonomous areas acts as a watchdog and supervisor to keep the work of the self-government and its personnel in good order.

It is worth noting that the judiciary at the autonomous areas doesn't count as parts of the self-government. The Ethnic Regional Autonomy Law does not make any difference between law courts in the autonomous areas and those of other parts of China. Chinese judiciary is organized as a four level hierarchy with the Supreme People's Court as the ultimate judicial power. Below it there are higher courts at the provincial level, intermediate courts at the prefectural level and primary courts at the county level. Lower level courts are under the leadership of the courts above, more like a bureaucratic system than a court system. Local courts in general are also responsible to local people's congresses. Under the Ethnic Regional Autonomy Law which has only two articles relating to courts and prosecutors, the autonomous areas copied this structure without making any special arrangements accommodating legal customs of different minority groups, some of which actually have very rich legal traditions different from those of traditional China and the PRC. Same goes with the People's Procuratorates which prosecute criminal cases on behalf of the state.

With regard to administration, the Ethnic Regional Autonomy Law seems to have put strong emphasis on the composition of government officials for the autonomous areas. A certain proportion of minority members in the government must be satisfied to guarantee self-government. The Ethnic Regional Autonomy Law has explicitly provided that the Chairman of an autonomous region, the prefect of an autonomous prefecture or the head of an autonomous county should be a citizen of the ethnic minority exercising regional autonomy in the areas concerned. Minority people are also preferred for selection as cadres staffing various departments of the local governments. In terms of exercising autonomy power, however, governments in the autonomous areas are constrained by various provisions imposing duties on them to follow central government's leadership.

The relations between institutions at the national and autonomous levels

It has been made clear by the PRC Constitution that the PRC is a unitary state with multi-ethnic groups. The central government exercises control over all provinces, autonomous regions and other administrative regions. Self-governments of the autonomous regions derive their powers from the unitary state. Local legislatures must defer to the state legislature, the NPC. Local governments follow instructions of the State Council. Local courts are part of the whole judicial apparatus of the state and so are the local procuratorates. In essence, the relationship between the institutions at the national level and those at the level of autonomous areas is of a vertical nature, with the national institutions at the controlling position.

The broad scheme for the division of powers between the national and autonomous governments

Under the current arrangement the national government takes overall control of all provinces and autonomous regions. Governments of autonomous areas are regarded as local organs of the state. While exercising the functions and powers of a local organ of state, organs of self-government in autonomous areas at the same time exercise other functions and powers as provided by the PRC Constitution and the Ethnic Regional Autonomy Law. These include legislative power on local and ethnic affairs, the power to flexibly carry out, or halt the carrying out of, some decisions, the right to develop their economies and to control the local finances, the power to train and employ cadres belonging to ethnic minorities, the power to develop education and ethnic culture, the power to develop and employ the local spoken and written languages, and the power to develop technological, scientific and cultural undertakings.

The people's congresses of the autonomous areas have the right to enact regulations on the exercise of autonomy and separate regulations in light of local political, economic and cultural characteristics. If resolutions, decisions, orders and instructions from the higher-level state organs are not suited to the actual conditions of the autonomous areas, the organs of self-government of these areas may be flexible in carrying them out or may decide not to carry them out after approval by the higher state organs. For instance, based on Article 36of the Marriage Law of the PRC, the five autonomous regions and some autonomous prefectures have made supplementary regulations in line with their own actual conditions. They changed the legal marriage age as provided by the national Marriage Law from “not younger than 22” to “not younger than20” for men and from “not younger than 20” to “not younger than 18” for women.

In general, organs of self-government of autonomous areas may independently arrange and manage local economic construction within the guidance of state planning, and formulate policies, principles and plans for their economic construction according to their local characteristics and requirements. Organs of self-government of autonomous areas may decide their own local education programs, including the establishment of schools, the length of study, the forms of school running, course contents, language of instruction and procedures of enrollment and develop independently their own type of education based on their ethnic minority characteristics and within the state education policies and relevant laws. Organs of self-government of autonomous areas make their own decisions concerning medical and health work.

The participation of residents or institutions of the autonomous region at the national level

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Theoretically, the minority and Han peoples participate as equals in the management of affairs of the state and local governments at various levels, and the rights of the minority ethnic groups to take part in the management of state affairs are especially guaranteed.

The Election Law of the National People's Congress and Local People's Congresses provide that the minority peoples shall have their own deputies to sit in the NPC, and the ethnic groups whose population is less than that prescribed for electing one deputy are permitted to elect one deputy. From the first session of the First NPC, held in 1954, to the present day, the proportions of deputies of ethnic minorities among the total number of deputies in every NPC have been higher than the proportions of their populations in the nation's total population in the corresponding periods.

Similarly, the Ethnic Regional Autonomy Law provides that all ethnic groups in autonomous areas shall elect an appropriate number of deputies to take part in the people’s congresses at various levels; among the chairman or vice-chairmen of the standing committee of the people's congress of an autonomous area there shall be one or more citizens of the ethnic group or groups exercising regional autonomy in the area concerned; the head of an autonomous region, autonomous prefecture or autonomous county shall be a citizen of the ethnic group exercising regional autonomy in the area concerned, and the other members of the people’s governments of these regions, prefectures and counties shall include members of the ethnic group exercising regional autonomy as well as members of other ethnic minorities as far as possible.

In areas where ethnic minorities live in concentrated communities, each of them has its own deputy or deputies sit in the local people's congresses. Ethnic minorities living in scattered groups may also elect their own deputies to the local people’s congresses and the number of people represented by each of their deputies may be less than the number of people represented by each of the other deputies to such congresses.

CONCLUSION

Under the current constitutional and legal framework, autonomy of the ethnic minority areas leans more towards executive autonomy than legislative or judicial autonomy. Even the executive autonomy granted is conditioned because autonomous governments are required to perform dual responsibilities. On one hand they are very much like other local governments and directly controlled by the central government. It is their duty to implement the policies of the central government; on the other hand, they are also required to exercise self-government adapted to local context. This dual function is hard to perform, especially so when local interest is in conflict with that of the central government.

The scope of autonomy enjoyed by Chinese autonomous regions seem to cover local matters such as health, education, social services, local taxation, internal trade and commerce, environmental protection, and local government structure and organization. Ethnic local legislative bodies do enjoy certain power to make rules and regulations, but their decisions are subject to approval by the central government

The local governments are organized by the local people's congresses, not formally subject to approval or confirmation by the central government. They are required to implement appropriate national laws and regulations, but allowed to make changes to adapt to local situations.

Legislatively, the Ethnic Regional Autonomy Law, as well as the PRC Constitution and relevant laws, such as the Law on Legislation, has provisions allowing autonomous areas to make regulations and rules addressing the particular needs of the minority group or groups within an autonomous area. However, the law also requires those regulations and rules be subject to approval by the NPC Standing Committee or competent authorities at local level. That provision effectively blocked the full legislative autonomy for the autonomous areas because under such arrangement the central government retains the ultimate legislative power. The NPC Standing Committee and local People's Congress Standing Committees would have the final say on what regulations made by the autonomous areas are to be eventually adopted.

The courts of the autonomous areas in China are subject to the court at the central level, that is the Supreme People’s Court and do not enjoy independent status. Their jurisdiction coincides with the administrative divisions. Questions involving the scope of local power or the relationship between the autonomous and central governments are by tradition handled by administrative or political means, not by judicial means.
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