洛桑桑盖：中国民族区域自治法与西藏，自治与统一的悖论

转贴自Harvard South Asian Journal（October 04, 2006）

CHINA’S NATIONAL AUTONOMY LAW AND TIBET: A Paradox between Autonomy and Unity

By DR. LOBSANG SANGAY

The Chinese Constitution and particularly the Regional National Autonomy Law of 1984 (RNAL) purportedly guarantees autonomy for minorities. However, the interpretation and Implementation of both the constitutions and the RNAL reveal an inherent paradox between the concepts of unity and autonomy in the governing of minority regions.

Using the Tibetan experience as a case study, I will argue that the practice of autonomy for Tibetan people is limited in the local Communist Party, and in all three branches of the government: specifically, that judicial autonomy is almost non-existent, legislative power constrained, and executive power debatable. Further, I will show that when a conflict manifests between the supremacy of either unity or autonomy, more often than not, unity trumps autonomy.

In this article, the term autonomy means that members of minorities are their own masters, exercising the right of self—governance to administer local affairs and internal affairs of their own ethnic groups. The meaning of unity is fourfold: a) unity of the motherland, b) unity under the leadership of the CPC, c) unity between Han Chinese and minority nationalities, and d) unity among minority nationalities.

China’s 2004 White Paper on Tibet states that regional ethnic autonomy is established “in order to protect the equal and autonomous rights of ethnic minorities….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.” To enforce the concept of autonomy, in 1984 China promulgated the Regional National Autonomy Law (RNAL). The preamble of the RNAL states 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.”

What intrigues me is seeing the term “unity” in the Preamble of the RNAL. 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 minority’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 China’s extraordinary sensitivity with regard to the security and 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. In fact, there is far less autonomy for minorities than that which the White Paper proclaims and Regional Autonomy Law prescribes. More specifically, the cause of the limited autonomy is the by-product of the very paradoxical provisions in the RNAL and, to even greater extent, in its implementation.

Historical Background:

Imitating the Soviet Constitution of 1918 and 1924, 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 the Communist Party of China (CPC) were engaged in civil wars. By adopting the Soviet Constitution, the KMT strategized 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.

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 Soviets, the 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.

As early as 1922, Communist Party of China (CPC) adopted policies on minorities. In 1931, trying to outdo the KMT, the Basic Law (Constitution) of the Chinese Soviet Republic (CSR) of Communist Party of China explicitly provided in Article 14 “the right of national self-determination of the national minorities in China” … including the right to… separation from China.” In 1949, like the Soviet and KMT, the CPC 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. Similarly, the “General Program” of 1952, and the 1954 Constitution of China included both autonomy and unity for minorities, continuing China’s paradoxical and contradictory approach in its various constitutions.

The justification of the switch from the right of secession to that of autonomy was based on China’s suffering after the first Opium War at the hands of foreign invasion and occupation. This included the 1940’s invasion of Manchuria by Imperial Japan, Outer Mongolia’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 here: just at the moment when the minorities might have asserted secession or self-determination, with or without foreign help, the provisions were reneged and replaced with “autonomy but unity.”


II: Promulgation, Interpretation and Implementation of the Regional National Autonomy, etc (RNAL) Reflecting the liberal and progressive phase of the CCP’s policy towards minorities,“…to restore the Leninist socialist “golden age” of the 1950s, in 1984, the Party-state promulgated the Regional National Autonomy Law (RNAL).” But despite giving several concessions to minorities, the very preamble of the RNAL makes it clear that “unity” superceded “autonomy.” Clearly reinforcing the mandatory requirement of “unity,” Article 5 of RNAL 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 provides the state’s special arrangement to preserve and protect minorities but when it is equated or considered lesser than “other laws” (which could mean any state, departmental or regional laws), it lessens the 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 state as 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 where people could be treated and governed as per their distinctiveness. When the state and state organs supersede or override autonomy, however, then they undermine the very idea of autonomy and special treatment.

LEGISLATIVE POWER:

The extent of legislative autonomy is debatable, because on the face of it, the RNAL gives room for autonomy by allowing 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, the document’s 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 renders local legislative modifications and local laws ineffective by requiring “approval” from the Standing Committee. By delaying or not responding 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. By requiring “approval” for the autonomous regions while requiring the provinces only to “report” it is clear that the provincial governments appear to enjoy more autonomy in amending and modifying national laws than autonomous governments. 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 to seek “approval” for minorities reinforces the argument in favor of the Chinese government’s extra sensitivity on the issues of security, justifying its choice of “unity” over “autonomy.”

Furthermore, the role of the CPC 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 CPC congress should review constitutional amendments before submitting to the NPC” and also, autonomous regions require “approval” of laws covering political matters. The CPC influence is conducted by penetrating NPC leadership, setting meeting agendas, and requiring oversight of the drafting process of the laws.

Thirdly, in the Tibetan Autonomous Region’s (TAR) People’s Congress, among the eighteen Chairmen and Vice-Chairmen, fifteen are Tibetan, two Chinese, and one Tibetan Muslim which is to somewhat proportionate to the ethnic composition in the area. 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 Han Chinese and non-Tibetans in the Standing Committee indicates their dominant influence in the decision making process of the legislature.

EXECUTIVE POWER:

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). The RNAL explicitly 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 “equitable” representation means--it could range from 50% to 90%. Interestingly, 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. It is to be noted that among the up to twenty-nine departments, 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.

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.

JUDICIARY (Article 46-47)

The Minority National Act (MNA) does not make the distinction between courts in the autonomous regions and those in other parts of China. It provides two provisions on people’s courts and procuratorates (Article 46, 47) without distinguishing 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, and particularly the local party thereby leaving less room for judicial autonomy.

The head of the TAR’s People’s court is a Tibetan and the head of the Peoples Procurates of TAR is a Chinese. Among the People’s Court and People’s Procuratorates at the regional, perfectural (city) and county levels, it is to be noted that combination of 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 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 and philosophy tilts towards emphasizing “unity” over “autonomy” when they make decisions in cases where the two concepts compete. 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 the latter. Further, in every judicial court--similar to all branches of governmental agencies--units of the Communist Party influence the decision-making process of judges, increasing the likelihood of favoring unity over autonomy.

As these facts indicate, room for judicial autonomy is almost non-existent. No wonder there are more convictions on political matters than redress: room for such issues barely exist. Tibetan judges, the potential constituents to favor autonomy, are constrained by the 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.

Conclusion:
Tibetans do not enjoy the prescribed autonomy in Tibetan areas in China. Limited autonomy under the Regional National Autonomy Law of 1984 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 in 1954 with the paradoxical concepts of autonomy and unity. In drafting the Minority Nationality Act of 1984, autonomy was further diluted by the overarching concept of unity, thereby creating paradoxical and contradictory approaches to autonomy for minorities. The implementation of autonomy was further undermined by expansive interpretation of provisions favoring unity while interpreting autonomy narrowly, specifically in the personnel affairs, which were disproportionately dominated by Han Chinese personnel over Tibetans.
There exists only a small degree of executive autonomy, limited legislative autonomy and almost non-existent judicial autonomy. Moreover the overarching local Communist Party is dominated by Han Chinese at the highest decision making body thereby its influence is palpable in major policies favoring unity over autonomy.

In sum, Tibetans are not the “masters 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.

Dr. Lobsang Sangay is presently a Research Fellow at East Asian Legal Studies Program, Harvard Law School. He earned his Doctorate in law, and master's degree from Harvard Law School, and did his LLB and B.A . (Honors) from Delhi University, India. He was a recipient of 2004 Yong K. Kim' 95 Prize of excellence for his Doctorate dissertation and Fulbright Fellowship to study at Harvard Law School. He has given numerous talks on Sino-Tibetan issues in various institutes and venues around the world. He is an editorial consultant for Radio Free Asia and has a weekly radio program. He has published articles about the Tibetan issue in the Harvard Asia Quarterly and Journal of Democracy, to name a few.