Democracy and the Rule of Law in China [1 ed.] 9789004190313, 9789004182127

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Democracy and the Rule of Law in China

Issues in Contemporary Chinese Thought Edited by

Arif Dirlik, Chinese University of Hong Kong Yu Keping, Peking University

VOLUME 2

Democracy and the Rule of Law in China By

Yu Keping

LEIDEN • BOSTON 2010

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Keping, Yu. Democracy and the rule of law in contemporary China / by Yu Keping. p. cm. — (Issues in contemporary chinese thought and culture ; v. 2) Includes bibliographical references and index. ISBN 978-90-04-18212-7 (hard cover : alk. paper) 1. Democracy—China. 2. China—Politics and government—2002- 3. China—Economic conditions—2000I. Title. II. Series. JQ1516.K47 2010 320.951—dc22 2010003653

ISSN 1874-0588 ISBN 978 90 04 18212 7 Copyright 2010 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints BRILL, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

CONTENTS Series Foreword .......................................................................... List of Contributors ....................................................................

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PART ONE

DEMOCRACY—THEORETICAL ISSUES Toward an Incremental Democracy and Governance: Chinese Theories and Assessment Criteria ........................... Yu Keping

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An Analysis of the Basic Theoretical Problems Concerning Democracy in China .............................................................. Gu Su

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Democratization: The Chinese Model and Course of Political Development ........................................................................... He Zengke

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PART TWO

DEMOCRACY AND PROBLEMS OF GOVERNANCE A Survey of Civic Character and Electoral Reform in China ....................................................................................... Cai Dingjian Intraparty Democracy and Political Development: Exploiting the Resources within the Establishment to Advance China’s Democratic Development ....................................................... Hu Wei

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Democratization of the National People’s Congress as the Focal Point for the Continued Advancement of China’s Democratic Development ....................................................... Pu Xingzu The Route of Rural Governance Reform: Strengthening Village Management and Streamlining Township and County Governance ............................................................... Xu Yong A Survey of China’s Legislative Work to Establish Village Autonomy ............................................................................... Bai Gang

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PART THREE

ON THE RULE OF LAW Constitutionalism and China ..................................................... Li Buyun Several Fundamental Theoretical Issues Regarding China’s Constitutional Reform ............................................................ Xia Yong

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Judicial Independence and Constitutional Reform ................... Ma Huaide and Deng Yi

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China and the Rule of Law in the Global Era ......................... Zhang Wenxian

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Index ...........................................................................................

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SERIES FOREWORD Arif Dirlik This series of edited volumes is intended to make available to Englishlanguage readers debates among prominent Chinese intellectuals and academics over issues of globalization; political, constitutional, and legal reform; modes of governance in urban and rural China; development and ecology; and culture and cultural policy. A basic goal of the Issues in Contemporary Chinese Thought and Culture series is to convey a sense of the issues that are important to Chinese intellectuals and academics, which are often overshadowed in foreign reporting by what Americans and Europeans think should be important. What often follows is a consequent misreading of the Chinese political scene, which is more often than not driven by wishful thinking and tendentious distortion. These intellectuals and academics are, for the most part, committed to the socialist system and the regime that speaks in its name. These volumes seek to let some of the more politically influential intellectuals speak for themselves, with all their ideological inclinations and stylistic idiosyncrasies, which are no less significant as markers of difference than the ideologies themselves. The writers included in the various volumes are individuals whose views have drawn some attention in the formulation of party and government policy. The intellectuals who capture the imagination of European/American commentators usually are those who have achieved prominence for their opposition to the regime, their critical stance, or their free-floating intellectual and cultural activity. But there are also party and government intellectuals, as well as academics committed to the regime, who work to reform the regime from the inside. These “official” intellectuals, as we might describe them, are committed to the system within which they work, but they are not therefore political hacks or uncritical apologists. Their own works are on occasion subject to censure and censorship. And as these volumes should substantiate, they represent a wide range of political and ideological orientations in their approach to questions of systemic reform and transformation. One important thing they share in common, in addition to a shared commitment to the system, is access to information not easily available

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to outsiders, as well as an insider’s political sense of what is possible and desirable that is a product of their participation in officially sanctioned political discourse. The discourse no doubt limits how far they can go in the imagination of reform. The self-imposed limitation is a condition of access to policy makers, an unfortunate characteristic of most political systems, including our systems in Western countries, but it also renders their ideas important because of their practical political implications. This series was conceived during the course of my conversations with Dr. Yu Keping, a prominent party intellectual, vice-director of the Central Compilation and Translation Bureau (a party think tank responsible for ideological work), and director of the China Center for Comparative Politics and Economics and the China Center for Government Innovations at Peking University. Keping and I have known each other for two decades, but it was when I was a visiting professor at the Central Compilation and Translation Bureau in the summer of 1986 that the idea took shape of publishing, simultaneously in Chinese and English, a set of volumes on policy discussions in China. Our discussion coincided with a new China orientation at Brill Publishers, whose editor, Albert Hoffstädt, responded with enthusiasm to our proposal and, since then, has given persistent support to the project. Matt Kawecki, who joined Brill as China editor as this project got under way, has been equally supportive. The greatest obstacle to any such undertaking is translation, and the Central Compilation and Translation Bureau helped out with that, although that, too, has presented technical problems that have led to the lagging of the English behind the Chinese publications. Mr. Yan Jian, assistant to Dr. Yu and presently a political science PhD student at People’s University in Beijing, has played an indispensable part in the processing of the volumes. Still, without the meticulous work of the freelance translators and editors hired by Brill, these volumes might not have seen the light of day. The translations have also been difficult because of the aforementioned stylistic idiosyncrasies I referred to (and some of these selections were more like conference presentations than finished papers). A number of these difficulties remain in the texts but hopefully help to convey a flavor of the originals, rather than obscure their meaning.

LIST OF CONTRIBUTORS Throughout this volume, Chinese names are always ordered according to standard practice in China, with surnames preceding given names. To clarify this ordering, surnames are in small capital letters in the following list of contributors. Bai Gang: Born in 1940, Bai Gang is the deputy director of the Institute of World Economics and Politics, Chinese Academy of Social Sciences (CASS). Cai Dingjian: Born in Jiangxi Province, Cai Dingjian is a professor and advisor of PhD students at China University of Political Science and Law. Deng Yi is a lecturer of administrative law at Southwest University of Political Science and Law. He got his PhD in law at China University of Political Science and Law in 2007. He has published dozens of articles on administrative law. Gu Su: A professor and PhD advisor at Nanjing University, Gu Su was born in Jiangsu Province in 1955. He Zengke: Born in 1965, He Zengke holds a PhD in political science and is a research fellow at the Institute for the Study of Contemporary Issues, Central Compilation and Translation Bureau. Hu Wei: Hu Wei is the dean of the School of International and Public Affairs at Shanghai Jiaotong University, as well as the executive director of the Chinese Association of Political Science, vice president of the Shanghai Association of Political Science, and a member of the Ministry of Education’s Commission on Higher Education. Li Buyun: Li Buyun is a research fellow at the Institute of Law, CASS; executive director of the Research Center for Women and Gender; and associate editor-in-chief of the Global Law Review.

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Ma Huaide: Born in 1965, Ma Huaide is a research fellow and supervisor of PhD students at China University of Political Science and Law. Pu Xingzu: Born in 1945, Pu Xingzu is currently a professor and PhD advisor at Fudan University’s School of International Relations and Public Affairs. Xia Yong: Director of the Institute of Law and dean of the Law School of CASS, Xia Yong obtained his PhD from Peking University in 1991 and was a visiting scholar and postdoctoral research fellow at Harvard University from 1995 to 1997. Dr. Xia is a professor of jurisprudence, legal history, and human rights theory. Xu Yong: Born in 1955, Xu Yong is the dean of the School of Political Science and Law and the China Rural Research Center at Huazhong Normal University. Yu Keping: Yu Keping is the director of the China Center for Comparative Politics and Economics and a professor at Peking University in Beijing. His areas of concentration include contemporary Chinese politics, comparative politics, and political philosophy. His publications include Democracy Is a Good Thing, Governance and Good Governance, Politics of Public Good or Politics of Rights, Antinomies of Globalization, China’s Political System Nowadays, and A Comment on Communitarianism. Zhang Wenxian: Born in 1951 in Henan Province, Zhang Wenxian is currently the director of the Jilin University Center for Theoretical and Legal Research, one of the Ministry of Education’s major research sites for social sciences and the humanities.

PART ONE

DEMOCRACY—THEORETICAL ISSUES

TOWARD AN INCREMENTAL DEMOCRACY AND GOVERNANCE: CHINESE THEORIES AND ASSESSMENT CRITERIA Yu Keping 1. Introduction Political terminology is, as a general rule, specific to the political era in which it is created. This is especially true of China, where people have witnessed numerous political movements since the founding of the People’s Republic of China (PRC) by Mao Zedong in 1949. Previously prevalent political jargon has been replaced by new terminology as one political era has succumbed to the next. Among the most popular political terms of the revolutionary period of 1949 to 1978 were revolution, dictatorship, and class struggle. However, after 1978, these disappeared from the repertoire of popular political terminology and were replaced by new terms, such as reform, rule of law, and stability, which continue to be widely used by the current political generation. The term democracy, however, is an exception to this rule. Despite the fact that many Chinese scholars have long viewed democracy as a foreign concept, arguing that “there is neither democracy nor science in traditional Chinese culture,”1 democracy has spanned the eras of modern Chinese history, remaining in popular usage irrespective of ruler or regime. The Communist Party of China (CPC) used democracy as the basis for overthrowing the Guomindang (GMD) during the Communist Revolution, which culminated in the founding of the PRC. Mao Zedong authored a pamphlet on “new democracy,” which continued to be one of his most influential works after the CPC came to power and throughout the Cultural Revolution, though neither of these historical movements were democratic in nature.

Li Shenzhi 李慎之, “Zhongguo chuantongwenhua jiwuminzhu yewukexue 中国 传统文化中既无民主也无科学 [Neither Democracy nor Science in Traditional Chinese Culture],” in Jiefang wenxuan 解放文选 [Liberation Anthology (1978–1998)], ed. Qiu Shi (Beijing: Jingji ribao Chubanshe, 1998), 1118. 1

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China has undergone fundamental political and economic change since the initiation of the Reform and Opening-Up Policy in 1978, and the terminology generated by this transition has replaced that of the revolutionary generation. Only democracy has endured, bridging the political generations. However, while the term democracy has continued to be used in political discourse, it is clear that both the Chinese understanding and practice of democracy have undergone great changes. 2. Chinese Concepts of Democracy during the Mao Era During the era of Mao Zedong, democracy, like other political terms, was not openly discussed but, rather, was used exclusively by the party and carried a very specific meaning. The only acceptable view on democracy at the time was the official Marxist position of democracy as the superstructure built upon an economic foundation. Ultimately viewed as a means of achieving more important economic goals, democracy was considered valuable only to the extent that it forwarded economic development. The party leadership of the time viewed democracy as class specific. Rejecting the notion of classless democracy, the leadership identified two fundamental forms of democracy: socialist democracy and capitalist democracy. Socialist democracy was promoted as the highest form of democracy, while capitalist democracy was denounced as a counterfeit. Democracy and dictatorship were viewed as complementary, with democracy serving the proletariat and dictatorship curbing the excesses of the bourgeoisie. On this topic, Mao wrote, “Democracy for the people and dictatorship over the reactionaries, the combination of these two constituent parts is the People’s Democratic Dictatorship.”2 Democracy and centralization were combined to create “democratic centralism,” that is, centralization based on democracy, and democracy under centralized leadership. This democratic centralism is fundamental to both the Constitution of the Communist Party of China and the Constitution of the People’s Republic of China.3 2 Mao Zedong 毛泽东, “Lun renmin minzhu zhuanzhen [On the People’s Democratic Dictatorship],” in Maozedong xuanij 毛泽东选集 [Selected Works of Mao Zedong], vol. 3, (Beijing: People’s Publishing House, 1991), 1475. 3 The General Provisions of the Constitution of the Communist Party of China stipulate that “we should abide by the principle of democratic centralism, which is

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This view of democracy is deficient in several respects. First, it devalues democracy as a mere “instrument,” possessing no innate value of its own and useful only insofar as it constitutes the means of achieving economic ends. As a result, democracy becomes inessential to practical politics. Furthermore, according to this instrumentalist view, the democracy of the people and dictatorship over the enemy are indivisible. This view falls short in its failure to provide the means by which to distinguish between the people and the enemy. Lacking such an objective criteria, it is left to the will of the leaders to distinguish “the people” (or the proletariat) from “the enemies.” Those who classify as proletariat in the eyes of the leaders are accorded democratic rights, while those who do not belong to the proletariat are deprived of these rights. This was the case during the Mao era. The scope of democracy was limited, while the scope of the dictatorship was extended due to the “magnification of class struggle.” The targets of the dictatorship were, at first, identical to the targets of revolution, that is, the landlords, capitalists, old bureaucrats, warlords, GMD reactionaries, and criminals. Then, rightist intellectuals, dissidents, ordinary citizens, and even cadres of the party and government were gradually targeted by the dictatorship. The instrumentalist theory actually emphasizes centralization over democracy. In Mao Zedong’s view, democracy merely functions as the foundation for centralization. But who should hold this final, centralized power? Not the people. Deng Xiaoping criticized the inappropriate and indiscriminate concentration of all power of the Party Committee in the hands of a few leaders, especially the highestlevel of leaders, who direct and decide everything.4

Ultimately, the instrumentalist view on democracy overlooks citizens’ economic democratic rights. This democracy calls for a “command” economy in which the means of production belong to the state or the collective, rather than the workers and peasants, and ordinary citizens do not have independent control over production. For example,

the combination of centralization on the basis of democracy and democracy under centralized guidance.” Article 3 of the General Provisions of the Constitution of the People’s Republic of China stipulates that “the state organs of the People’s Republic of China should exercise democratic centralism.” 4 Deng Xiaoping 邓小平, “Dang he guojia lingdaozhidu de gaige 党和国家领导 制度的改革 [On the Reform of the System of Party and State Leadership],” in Deng Xiaoping wenxuan 邓小平文选 [Selected Works of Deng Xiaoping], vol. 3 (Beijing: People’s Publishing House, 1983), 329.

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during the Mao era, peasants did not even have the right to decide which crops would be planted in the fields; instead, this was determined by the people’s commune cadres. Perhaps ironically, the worst outcome of Mao’s instrumentalist democracy was the “ten-year chaos” of the Cultural Revolution. During that “revolution,” “democracy” was overtly used by some politicians (such as the Gang of Four) to suppress their opponents. Ordinary citizens’ rights were not guaranteed under the so-called “grand democracy” of the Cultural Revolution, which promoted speaking out freely, airing views fully, holding great debates, and writing big-character posters (personal denunciations). Even the president of the state and the minister of defense were subject to this “great democracy”: both were arrested during the Cultural Revolution and died in prison without trial. It became clear to the Chinese people that this instrumentalist approach to democracy was, in practical application, devastating to the country’s political development, and upon the death of Mao Zedong, it was speedily renounced. 3. Deng Xiaoping’s Perspective on Democracy The December 1978 Third Plenary Session of the Eleventh Central Committee of the CPC is generally regarded as the cornerstone of China’s reform and opening up.5 The plenary session put an end to the Cultural Revolution and shifted the principal focus of the party from class struggle to economic development. It was during this plenary session that Deng Xiaoping was elected to the top position of power within the party and state, and over the course of the five-day session, a number of historically significant resolutions were passed. Many scholars who specialize in the history of the CPC attribute the fundamental success of this particular session to the overwhelming consensus reached (through intense debate and sharp conflict) by participants of a thirty-six day conference that preceded the session. Decisions reached at the conference were subsequently approved by the session, and the keynote address delivered by Deng Xiaoping at the conference was consequently officially acknowledged as “the main

5 Launched by Deng Xiaoping in 1978, the Reform and Opening-Up Policy initiated China’s transition from a centrally planned economy to a market-based system.

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speech of the Third Plenary Session.”6 As Yu Guangyuan, an authoritative theoretician of the CPC who attended both the session and the preceding conference, later attested, the advancement of democracy was one of the primary topics addressed by the conference. So prevalent was the topic that almost all top party leaders referred to democracy at some point during the conference, and among those who spoke on democracy, Deng Xiaoping and Ye Jianying spoke most impressively. Later, their statements were lauded by participants and were received with great enthusiasm by party cadres and members of the general public.7 Retrospectively, it is apparent that Deng intentionally initiated a revision of Mao’s view of democracy in his speech to the conference. His famous speech entitled “Emancipate the Mind, Seek Truth from Facts, and Unite as One in Looking to the Future” (解放思想, 实事 求是, 团结一致向前看) delved deeply into the topic of democracy; in his speech, he deftly revised and strategically diverged from Mao’s view of democracy. In fact, it is now evident that each point of his speech was designed for this very purpose. First, he discussed the relationship between democracy and centralism, noting that party leaders had laid undue stress on centralism to the detriment of the development of democracy: At present, we must lay particular stress on democracy, because for quite a long time democratic centralism was not genuinely practiced; centralism was divorced from democracy and there was little democracy.8

Second, he advocated economic democracy, emphasizing producers’ economic rights in managing production: “We should take realistic measures to guarantee the individual democratic rights of workers and 6 “Canyue zhonggongzhongyang wenxianbianji 参阅中共中央文献编辑委员会 为邓小平解放思想, 实事求是, 团结一致向前看所作的题注 [Notes of the Editorial Committee for Party Literature under the Central Committee of the CPC],” in Deng Xiaoping wenxuan 邓小平文选 [Selected Works of Deng Xiaoping], vol. 3, (Beijing: People’s Publishing House, 1983), 140. 7 Yu Guangyuan 于光远, Wo qinli de naci lishizhuanzhe 我亲历的那次历史转折: 十一届三中全会的台前幕后 [The Great Historical Shift I Experienced: The Context of the Third Plenary Session of the Eleventh Party Central Committee] (Beijing: Central Translation and Compilation Press, 1998), 353. 8 Deng Xiaoping 邓小平, “Jiefangsixiang shishiqiushi tuanjieyizhi qiangqiankan 解放思想, 实事求是, 团结一致向前看 [Emancipate the Mind, Seek Truth from Facts, and Unite as One in Looking to the Future],” in Deng Xiaoping wenxuan 邓小 平文选 [Selected Works of Deng Xiaoping], vol. 2, (Beijing: People’s Publishing House, 1983), 144–146.

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peasants, including democratic elections, democratic management, and democratic supervision.” Finally, Deng stressed the institutionalization of democracy. He pointed out that democracy is gradually institutionalized and codified so that such institutions and laws will not change with alterations in the leadership or changes in the views or focus of attention of any leader.9

Afterward, Deng expounded his views on democracy and made a crucial revision to Mao’s theory of democracy when he stated that he no longer regarded democracy simply as an instrument, but rather openly acknowledged that “democracy is our goal.”10 Deng’s theory of democracy is particularly noteworthy because it has been written into both the Constitution of the Communist Party of China and the Constitution of the People’s Republic of China as the guiding principle to be followed by all Chinese citizens and CPC members in guiding China’s political reform. Broadly defined, Deng’s theory of democracy consists of four points: (1) Democracy is one of the fundamental goals of China’s political reform. Deng believed that without democracy, there could be no socialism, and democratization should thus be a fundamental goal of the CPC. He summarized his most important political platform as follows: “It is one thing to develop democracy politically and another to carry out reform in the economy and other social fields.”11 (2) China should never adopt Western democracy. Deng held that certain features of Western democracy, such as the multiparty representative system and the checks and balances of the executive, legislative, and judicial branches of government, constituted a democratic monopoly of the capitalist class. Chinese democracy, conversely, was embodied in the system of the People’s Congress. (3) Democracy must be supported by law. China would not continue to advance without a comprehensive democracy supported by sound laws. (4) Democracy must be enacted under the leadership of the CPC and is contingent upon the establishment of

Ibid. Deng Xiaoping 邓小平, “Yadao yiqie wending 压倒一切的是稳定 [Stability Overrides All],” in Deng Xiaoping wenxuan 邓小平文选 [Selected Works of Deng Xiaoping], vol. 3 (Beijing: People’s Publishing House, 1983), 285. 11 Deng Xiaoping 邓小平, “Zhengzhishang fazhan minzhu, jingjishang shixing gaige 政治上发展民主, 经济上实行改革 [Develop Political Democracy and Carry Out Economic Reforms],” in Deng Xiaoping wenxuan 邓小平文选 [Selected Works of Deng Xiaoping], vol. 3 (Beijing: People’s Publishing House, 1983), 116. 9

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political stability. In Deng’s thinking, without the watchful oversight of the CPC, China’s experiment in democracy could easily end in chaos, and without political stability, there could be no democracy. In essence, the theory of democracy espoused by Deng is consistent with that proposed by Mao: both lay particular stress on the class nature of democracy, reject the Western multiparty system, and advocate the exclusive leadership of the CPC in overseeing the system of the people’s congresses. Deng, however, made a crucial revision to Mao’s theory of democracy in defining democracy as a goal of the CPC and stressing the institutionalization of democracy, economic democratization, and the establishment of law. As a result of this revision, significant developments have occurred in Chinese democratic theory and practice since the reform and opening up. 4. Democratization and Chinese Economic Growth There is no doubt that the principal effect of this reform has been rapid economic growth. China’s economy has developed so rapidly that some refer to it as “a miracle.” China’s average annual GDP growth rate during the twenty-year period from 1978 to 1998 was greater than 9.8 percent. In 1998, China’s GDP reached 7,955.3 billion RMB compared with a mere 358.8 billion RMB in 1978. This rapid economic growth has resulted in an enormous rise in the standard of living of the Chinese people. The average per capita income of peasants increased from 133.6 RMB in 1978 to 2,160 RMB in 1998. The average per capita income of urban residents rose from 343.4 RMB in 1978 to 5,425 RMB in 1998.12 China’s unparalleled economic development is a direct outcome of economic pluralization, which, in turn, is a result of the reform of the traditional socialist economic system. First, the structure of ownership was reformed, and the diversification of the economy was initiated. The total output value of state-owned enterprises (SOEs) comprised the greatest portion of the GNP until the 1980s, but in recent years, privately owned enterprises have been gradually replacing SOEs in terms of total output value as a portion of the GNP. While in terms of fixed assets, SOE investments still constitute over 70 percent of the GNP, 12 Zhongguo tongjj nianjian 1998《中国统计年鉴 1998》[China Statistical Yearbook (1998)] (Beijing: Zhongguo tongji chubanshe, 1999).

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more than 60 percent of the GNP increase in recent years is attributed to the growth of privately owned enterprises, since over 70 percent of SOEs operate at a loss. Second, operational and management systems were reformed. In the countryside, the people’s commune system was abolished and replaced by a system of contracts and subcontracts; in urban areas, the egalitarian production and distribution system was replaced by a system of merit, characterized by job accountability and merit-based pay scales. Third, the planned economy was replaced by a free market system, and centralized, mandatory pricing yielded to market-based pricing driven, to some extent, by supply and demand. In addition, existing systems in critical economic sectors such as finance, insurance, distribution, employment, and housing were significantly reformed or replaced by new systems. In a discussion of China’s reforms over the past several decades, many point to the aforementioned economic achievements. It is still frequently contended that great strides toward development have been taken in every area except politics. Some even attribute the success of China’s economic reform to the CPC policy of suspending political reform in order to focus on economic reform, contrasting this approach with that of the former Soviet Union in which radical political changes resulted in the failures of economic reforms. Indeed, this argument may hold up within the Western multiparty political model with its characteristic separation and balance of powers enshrined in three branches of government (executive, legislative, and judicial), but this is not true of the Chinese political model. For China, among the three fundamental variables that influence the effective functioning of society (i.e., politics, economics, and culture), politics is ultimately and without exception the most important and decisive. Mao Zedong expressed this quite clearly in stating that politics dominates and is the soul of all work, “especially in a transitional society.”13 In China, there can be no lasting social reform, including economic reform, without political reform. The decisions of the Third Plenary Session of the Eleventh Central Committee of the CPC should, in fact, be regarded as political reforms, which led to the aforementioned economic transformation. This process of economic pluralization was motivated by

13 Mao Zedong 毛泽东, Maozhuxi yulu 毛主义语录 [Quotations from Mao Zedong] (Beijing: Capital Printing House, 1968), 118.

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political reforms, and these economic reforms have subsequently accelerated the process of political change. In view of China’s last two decades of reforms, we see that political reform is both an independent variable and a dependent one. It was political reform that initiated the process of economic pluralization, which, in turn, accelerated the political changes that have brought about a relative degree of political pluralization. Thus, we can characterize China’s political development over the last two decades as a shift from absolute centralism toward incremental democracy. Here, incremental democracy is distinguished by the following transitional characteristics: First it is distinguished by the weakening of the previous centralist system and the emerging of political pluralization. However, this political pluralization is conditional. In other words, China is experiencing a political transition from traditional totalism14 toward a conditional democracy. Second, when measured against the economic liberalization of the past few decades, China’s political transformation has been limited. In the author’s view, the necessary relative, or conditional, pluralization will emerge from the following political changes. 4.1. Separating the Party from the State Characteristic of traditional Chinese socialism was the tendency to identify the party with the state, a practice promoted by Mao Zedong that placed the political system under the “absolute centralist leadership of the party.” It was a typical centralist political model, under which the CPC, as the only party in power, exercised all legislative, executive, and judicial authority, including economic, ideological, and administrative control at the central and local government levels. The party and the government were viewed as one and the same. With the implementation of the Reform and Opening-Up Policy, reformers within the party placed the separation of party and state on the reform agenda as a major advancement in the restructuring of traditional politics. After twenty years, China has made significant progress in the separation of party and state, though the goal of complete party-state separation remains unattainable within the one-party system. There 14 The term totalism differs from totalitarianism. The term was originally proposed by the American scholar Tang Tsou of the University of Chicago as referring to a state whose fundamental feature is the identification of state with society. While to some extent this concept is related to both totalitarianism and authoritarianism, it is, in certain aspects, quite unique.

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have, however, been two significant areas of progress that are worth noting. First, the CPC has, for the first time, declared that the party, too, must act within the framework of the law as opposed to being viewed as above the law: It is extremely significant that the new Party Constitution stipulates that ‘all activities of the Party must be carried out within the framework of the law.’ All activities of Party organizations and their members, from the central Party organs down to the local-level units, must accord with the Constitution and the law, for the Party is neither above the law nor the Constitution.15

Second, the political report of the Thirteenth National Party Congress reaffirms the separation of party and state and establishes the role of the government, as opposed to the party, in exercising executive and administrative power. It declares that the separation of functions is essential to political reform, asserting that the party, which has guided the people in establishing state organs, civic organizations, and various economic and cultural associations, must guarantee that the state organs execute their functions in full and must respect, without interference, the functions of civic organizations. This political report emphasizes the necessity of maintaining the distinction between the party leadership and the administrative and executive organs of government and defines the role of the party as the “guardian of political principles, monitor of major policy formulation, and appointer of cadres to the State organs.”16 4.2. The Emergence of a Civil Society During the Mao era, the amalgamation of party, state, and society precluded the establishment of an independent civil society. Only after the implementation of the Reform and Opening-Up Policy did

15 Zhonggong zhongyang 中共中央 [Central Committee of the CPC], “Zhonggong zhongyang guanyu quandang bixu jianjue weihu shehuizhuyi fazhi de tongzhi 中共中央关于全党必须坚决维护社会主义法制的通知 [Notes of the Central Committee of the CPC on Safeguarding Socialist Law]” ( July 10, 1986), in Renmin daibiao dahui wenxian xuanbian 人民代表大会文献选编 [Selected Documents of The National People’s Congress], ed. the Research Office of the General Office of the Standing Committee of the NPC (Beijing: Democracy and Law Press, 1992), 166. 16 Zhao Ziyang, “Yanzhe you zhongguotese shehuizhuyidaolu qianjin 沿着有中 国特色社会主义道路前进 [Advancing towards the Goal of Establishing a Uniquely Chinese Socialism],” in Political Report of the Thirteenth National Party Congress, ibid., 185.

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a relatively independent civil society begin to emerge. Since then, the quantity and diversity, as well as the legitimacy and autonomy, of civic organizations have increased significantly. Prior to China’s reform and opening up, a limited number of “social associations” (such as the trade unions, youth leagues, and women’s federations) operated under the stringent guidance of the party and, thus, did not constitute true civic organizations but were, rather, ancillary organs of the party-state. With China’s market-oriented economic reforms has come the rapid growth of civil society organizations (CSOs). In the early 1950s, only 44 national social associations were in existence, and fewer than 100 had emerged by 1965; during this same period, only 6,000 local-level social associations were established. However, by 1989, the number of national CSOs had increased to over 1,600, and more than 200,000 local-level CSOs had been established. By 1997, the total number of CSOs at or above the county level had reached 181,318. Although official statistics do not include the number of CSOs below the county level, conservative estimates exceed 3 million, including 739,500 village self-governance committees and 510,000 local trade unions.17 In addition to these social associations, a new form of CSO emerged in the 1990s. Having proliferated rapidly in a relatively short period, it is estimated by the Department of Civil Affairs that at least 700,000 of these “civil nonenterprise units” now exist nationwide.18 Together, these CSOs constitute a solid grassroots foundation for democracy and have, in recent years, contributed significantly to the development of democracy and good governance.19 4.3. The Rule of Law as a Goal for China’s Political Development The numerous tragedies of the Cultural Revolution were, to a great extent, the result of the absence of the “rule of law” and the predominance of the “rule of leaders.” For this reason, the new generation of “reform era” leaders and intellectuals has continuously emphasized

17 Zhongguo tongji nianjian, 1998 中国统计年鉴 1998 [The 1998 Statistical Yearbook of China] (Beijing: Zhongguo tuoji chubanshe, 1999). 18 Zhongguo minzhenggongzuo nianjian, 1998 中国民政工作年鉴 1998 [The 1998 Civil Affairs Yearbook of China] (Beijing: Zhongguo tuoji chubanshe, 1999). 19 Yu Keping, “Zhongguo gongminshehui de xingqi jiqi dui zhili deyingxian 中国 公民社会的兴起及其对治理的影响 [Changing Governance and Emerging Civil Society in Reform China],” Zhongguo shehuikexue jikan 中国社会科学季刊 [The Chinese Quarterly of Social Sciences] (Hong Kong: Autumn, 1999).

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the establishment of the rule of law as a fundamental goal. Convened in September 1997, the Fifteenth National Party Congress formally endorsed the principle of governance in accordance with the rule of law, establishing in the Congress’ political report the goal of constructing a socialist state under the rule of law. The National People’s Congress (NPC) subsequently amended the Constitution to include the “implementation of the rule of law within the State” and the “construction of a socialist state under the rule of law,” thus, introducing the principle of “State governance under the rule of law.” It is estimated that during the twenty-year period from 1979 to 1999, the NPC and its standing committee approved 351 new laws and statutes, the State Council formulated 800 new regulations, and the local people’s congresses enacted more than 6,000 new local laws and regulations.20 Between 1994 and 1996, the NPC and its standing committee formulated a new law or statute every thirteen days while the State Council issued a new regulation every six days. The Chinese leadership has set as its goal the establishment of a comprehensive system of law by 2010.21 4.4. Broadening the Scope of Direct Elections and Local Self-Governance Many of China’s post-Mao generation leaders, including Deng Xiaoping, have emphasized the importance and promoted the development of grassroots democracy. According to the 1979 Law for the Election of National and Local People’s Congress Representatives, all People’s Congress representatives at and below the county level must be directly elected by voters. Although high-level party and government cadres continue to be appointed rather than elected, experimental elections of town and township leaders were conducted in 1998–99 in Sichuan Province and Shenzhen Special Economic Zone, indicating future potential for the democratic election of high-level leaders. Most noteworthy in the development of grassroots democracy is the expansion of village self-governance. Adopted in November 1989, the Organic Law of Renmin ribao 人民日报 [The People’s Daily], April 14, 1999. Jiang Zemin 江泽民, “Gaoxing dengxiaopinglilun weida qizhi bajianshe youzhongguotese shehuizhuyi shiye quan mian tuixiang ershiyishiji” 高兴邓小平理论伟 大旗帜, 把建设有中国特色社会主义事业全面推向二十一世纪 [Holding High the Banner of Deng Xiaoping Theory and Propelling the Cause of Building a Uniquely Chinese Socialism into the 21st Century],” in Zhongguogongchandang dishiwuci quanguaodaibiaodahui wenjianhuiban 中国共产党第十五次全国代表大会文件汇编 [Selected Documents of the Fifteenth Party Congress] (Beijing: People’s Publishing House, 1999), 33. 20 21

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the Village Administration Committees of the People’s Republic of China provides the framework for the gradual expansion of the system of village self-governance nationwide with the goal of removing upper echelon government officials from the village governance process and implementing the direct, free election of village administrators by villagers (as opposed to their appointment by party committees). By the end of 1997, approximately 60 percent of villages nationwide had begun the transition toward self-governance, and over nine hundred thousand village committees had been elected with 90 percent of voters participating in elections. The following four components comprise the law on village selfgovernance: (1) The village leaders and village committee members are to be elected through a free, direct anonymous vote. (2) All major decisions, including plans and projects related to the development of the village economy, public commodities, and other important issues, should be adopted and approved by the village assembly or the village representative assembly. (3) All issues relating to the collective interests of the village must be conveyed directly to the villagers. (4) Village affairs should be administered in accordance with village rules and regulations. The practical implications of the system of village self-governance for China’s democratization are substantial, as over 800 million of China’s 1.3 billion people are peasants. 4.5. The Separation of State and Enterprise Under the traditional socialist system, all Chinese enterprises were owned and operated by the state, which held a monopoly of all major industries. The directors of these enterprises were officially appointed party and government cadres, who enjoyed the same status and privileges as state officials; thus, the management structure of enterprises mirrored that of the state bureaucracy. This integration of state and enterprise, in direct contrast with the enterprise structure of modern market economies that requires enterprises to operate independent of government control and influence, was the product of China’s planned “command” economy. Thus, China’s twenty-year program of economic reform was, to a great extent, characterized by the extraction of state from enterprise. The separation of state and enterprise has remained a top priority on the reform agenda of China’s post-Mao leadership as evinced in the focus of the 1997 Fourth Plenary Session of the Fifteenth Central Committee Congress of the CPC on the

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expansion of SOE reform and the establishment of modern corporate structures. Although China has made considerable progress on this front, much work remains to be done in order to completely remove the state from the operation of enterprises. At present, the majority of enterprises, including SOEs, operate with relative independence from the state, which is no longer directly involved in the management of China’s enterprises. Many SOEs are currently undergoing a transformation of ownership and management structure, and the directors of SOEs are no longer officials of the party or government. The decentralization of China’s political structure has led to the gradual separation of government and enterprise. 4.6. The Acceleration of Local Government Innovation Spurred by the transformations in political ideology and political circumstances, local party and government organs have, in recent years, adopted an innovation-oriented approach to policy formulation and implementation. These grassroots governmental innovations may be broadly classified as follows: 4.6.1. The Expansion of Political Transparency and Openness in Government Affairs Since the mid-1990s, the Chinese government has increasingly emphasized “openness in government affairs.” The policy of increased government openness is reflected in the establishment of the National Leading Group on Government Affairs Openness and the 1997 issuance by the State Council of the Regulations on Transparency of Government Information, which defines transparency as the legal responsibility of government organs at every level and requires that party and government organs disseminate efficiently and effectively to the public information regarding major policies and regulations, as well as issues related to citizens’ interests. These regulations mandate the implementation of the following government transparency measures: (1) the release within a specified time frame of information pertaining to government decisions, policies, and regulations in order that every effort may be made to garner public feedback and incorporate public interests; (2) the regular publication of important information on government affairs, including the establishment, role, and operational procedures of government organs, in order that the public may have easy access to government affairs information; (3) the periodic release of important

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statistical data regarding the efficacy of social development strategies and social programs, as well as relating to national economic conditions, the performance of the budget, and so forth; (4) the publication of information pertaining to important judicial affairs—such as public security; census management; the detention, trial, and accusation of criminals; and so forth—in order to maintain judicial transparency and establish effective measures of judicial oversight; (5) the release of information on nominees prior to the appointment of an official in order to provide a window during which public feedback on proposed candidates may be received; and (6) the establishment of electronic resources for the dissemination of government information, including the creation and maintenance of local and national government Web sites, in order that citizens may access information regarding the management of general governmental and public affairs, as well as provide useful feedback. 4.6.2. The Construction of a “Service Government”: Improvement of the Quality of Public Services (1) the establishment of “mayor hotlines” through which citizens may communicate complaints and suggestions to the local government twenty-four hours a day and to which government officials must respond in a timely fashion; (2) the establishment of official “site investigations,” or periodic visits of major government officials—such as mayors, magistrates, heads of townships, and party secretaries—to local constituencies for the purpose of receiving and responding to the complaints, suggestions, and appeals of local citizens; (3) the proposal of concrete plans and measures to assist disadvantaged groups within the local constituency groups, focusing primarily on the alleviation of poverty in the local community within a given time frame; (4) the establishment of the “joint defense” system, “community patrol” system, and “110 emergency hotline” to safeguard social stability; and (5) the implementation of a mandatory education policy, requiring that local governments provide equal educational opportunities to all citizens and establish schools specifically for this purpose. 4.6.3. The Improvement of the Government Official Selection Process and the Expansion of Direct Elections (1) the competitive selection of government officials (information on the recruitment of government officials should be released in advance so that all eligible citizens may compete for public office; the process

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must be impartial and competitive and the final selection based on the performance and qualifications of the candidates—at present, bureaulevel officials hold the highest competitively selected positions within the government); (2) the direct election of town mayors (certain cities and provinces—e.g., Sichuan and Shenzhen—have recently expanded the scope of direct elections to include town mayors); (3) the implementation of the “nomination and public election” and “two ballot” systems (i.e., candidates for party secretary may, in some villages, be nominated by both party and nonparty members); (4) the improvement of administrative litigation procedures in order to increase citizens’ access to the resources necessary to file legal complaints against the government (in the case that the government is shown to have acted improperly, it shall be held accountable); (5) the implementation of “exit auditing” in order to determine if, or the extent to which, financial rules and regulations were violated during an official’s term of office; and (6) the encouragement of “media oversight” (a number of local governments have established mechanisms to increase the oversight of government by the media with the goal of exposing the illegal conduct of officials). 4.6.4. The Improvement of Administrative Efficiency and the Promotion of “Clean Government” (1) the simplification of the system of administrative examination and approval in order to make the process more accessible to citizens and lower administrative costs; (2) the clarification of administrative responsibilities through the establishment of the “service obligation” and “accountability inquiry” systems in order to discourage official negligence and increase overall government accountability; and (3) the construction of an “emergency management system,” including a provision authorizing government to supersede regular operational procedures in times of emergency to meet the increased demand of citizens upon public services. The aforementioned political innovations and advancements have been implemented in varying degrees within different regions across the country; while some governments have implemented measures reflecting general national trends, others have adopted strategies specific to local conditions. Additionally, while a number of reforms have been implemented from the top down, trickling from the national to the local levels, others have been initiated within local communities and only later spread to different regions. Some reforms have been institutional,

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while others have been legislative; some have been superficial, while others have been deeply effective. However, all of these developments share several underlying characteristics. First, these reforms are the direct result of China’s implementation of the Reform and OpeningUp Policy. While the majority are domestic in scope, many of these reforms would not have been possible without China’s “opening up” to the global community, for these reforms are, to a great extent, the product of economic globalization. Second, these political developments and governmental innovations are “homegrown,” revealing the innovativeness of the Chinese people. They constitute the perfect amalgamation of Chinese conditions and universal values, such as freedom, justice, democracy, equality, and human rights. Finally, these reforms share a fundamental objective—that is, the establishment of modern democratic governance across the country in order that the democratic rights of citizens may be realized fully and protected. The yielding of China’s overly centralized political system to an incremental democracy is further evidenced in the transformation of the relationships between the central and local-level governments and the state and the citizenry, as well as in the liberalization of the political climate; the latter has, in turn, generated a more expansive and inclusive discourse on democracy among Chinese intellectuals. The current relatively liberal political environment contrasts starkly with that of Mao’s day, during which a distinction was drawn between academic and political issues: while discussion of the former was permissible, discussion of the latter carried a severe penalty. Following the implementation of the Reform and Opening-Up Policy, China’s political environment underwent a tremendous transformation, and the previously enforced taboo of discussing political issues was harshly criticized: If we simultaneously condone “freedom of speech” within the academic realm and condemn political discussion, then we deprive the preponderance of citizens of the right to participate in politics, which inevitably leads us to the conclusion that politics is only the concern of an elite few.22

22 Zhang Xianyang and Wang Guixiu, 张显扬、王贵秀, “Yilun ziyou 议论自由 [Free Speech],” in Dushu 读书 [Reading], no. 9, (1979).

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As a result of the liberalization of the political climate, Chinese intellectuals are increasingly confronting “sensitive” political issues. Yet despite political reforms, certain issues remain sensitive: The reform of the socialist political system is undoubtedly a sensitive issue. This is because both leftists and rightist will attempt to interfere with our cause. However, sensitive issues are generally the most critical issues, and if we refrain from studying, discussing, and grappling with such critical issues due to their sensitivity, then how shall we ultimately resolve these issues? How shall our cause be advanced?23

5. The Recent Discourse on Democracy Although a number of obstacles and a degree of sensitivity persist, Chinese intellectuals have taken advantage of the relatively liberal political climate to launch a major discourse on politics, with democracy becoming a topic of particular interest during the past twenty years. The recent academic literature reflects a diversity of views on democracy, which, broadly classified, constitute three theories of Chinese democracy: orthodox Marxism, liberalism, and incremental democracy. The author offers a brief exposition of each of these in the text that follows. 5.1. Orthodox Marxism According to the orthodox Marxist view, the superstructure of democracy is established for the sole purpose of advancing the economic foundation upon which it is constructed. True democracy is manifested in popular sovereignty; however, because democracy is based on social class, classless democracy is impossible: The nature of democracy and the state is such that throughout history the ruling class has enjoyed democratic rights while the rights of the ruled have been denied or been granted only formally and incompletely.24

23 Liu Ji 刘吉, “Jiji tansuo shehuizhuyiminzhuzhengzhi de shixiantujin 积极探索社 会主义民主政治的实现途径 [Actively Exploring Practical Approaches to Realizing Socialist Democratic Politics],” in Zhongguo zhengzhi tizhi gaige wenti baogao 中国政治 体制改革问题报告 [Report of the Reform of China’s Political System, 1978–1999], ed. Liu Zhifeng 刘智峰 (Beijing China Film Press, 1999), 1–2. 24 Feng Wenbin, “On Problems of Socialist Democracy,” in Practical Selections for 20th Century China, ed. Li Bingqing (Beijing: Chinese Peace Publishing House, 1998), 61.

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Thus, the contemporary Western democratic model does not constitute true representative government. According to this theory, the highest and only true form of democracy is embodied in the socialist model, for socialist democracy alone provides the greatest good for the greatest number. Conversely, capitalist democracy benefits a limited portion of the population and, thus, constitutes a false model of democracy. For orthodox Marxists, China’s adoption of the Western democratic model, with its characteristic multiparty system and three branches of government, would be retrogressive. The people’s representative system alone provides a framework for governance that is compatible with China’s political and social reality and, thus, must be recognized as the sole course for China’s democratic development and the only means by which China can “guarantee that the State is ruled by the people in accordance with law in order that the people may become masters of the State.”25 5.2. Liberalism Liberalism declares the universality of Western-style democracy. According to this theory, China’s transition toward a market economy, a liberal economic model, necessitates the establishment of a liberal system of politics. Liberal democracy is defined as representative democracy, characterized by multiparty elections and the separation of the legislative, executive, and judicial branches of government. In the liberalist view, the equal rights and status of multiple political parties must be established within the Chinese Constitution. Additionally, the powers of the legislative, executive, and judicial branches must be separate. Chinese liberals rarely promote this theory of democracy overtly, for the status of the CPC as China’s sole governing party is enshrined in the current Constitution as one of “four principles” that if publicly challenged could carry severe political consequences. Nonetheless, modern Chinese liberalists continue to endorse openly the economic and political values of liberalism: China is currently transitioning towards a market economy, and this shift will necessarily impel the development of economic liberalism as the foundation for all other forms of liberalism . . . We are entering a global age, and just as free market economies have spread across the globe, so 25 Du Gan, “Zhengzhiduoyuanhua pingxi 政治多元化评析 [An Analysis of Political Pluralization],” in Shehuikexueyanjiu 社会科学研究 [Social Science Studies] 2 (1992).

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The actual impact of the orthodox Marxist view of democracy on apolitical life is limited as a result of its emphasis on centralism over freedom, Chinese characteristics over universal values, and theoretical principles over practical application. The scope and influence of the liberalist view of democracy are restricted to a small circle of intellectuals due to the lack of legitimacy and plausible applicability of this model within Chinese politics. Comparatively speaking, incremental democracy has the potential to exert considerable influence on China’s political development, for it better addresses the practical conditions of China’s reforms. 5.3. Incremental Democracy Economic experts have characterized the course of China’s economic reforms as “incremental,” or “gradual,” raising the question of whether China may in other areas, particularly politics, adopt a similarly “incremental” model of reform. Few have adequately addressed this important issue. In the author’s view, China’s current strategy of comprehensive social reforms (including political reforms) actually is, or should be, based on an incremental model. Given current domestic conditions, the incremental advancement of democracy should be China’s greatest political priority, for it constitutes the only feasible model for effective democratic governance. It is, in fact, the practical applicability of incremental democracy that distinguishes it from both orthodox Marxism and liberalism. Rather than focusing on theoretical implications and principles, incremental democracy is concerned with the practical effects of democracy. It embraces the valuable components of a variety of theories and systems (as opposed to concentrating on a singular democratic theory or system) and, while recognizing the universality of democracy, considers specific demands of China’s current domestic conditions and traditional culture. Rather than focusing on elites and intellectuals,

26 Li Shenzhi, “Advancing the Liberal Traditions of Peking University,” in Traditions of Peking University and Modern China (Beijing: China Personnel Publishing House, 1998), 4–5.

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incremental democracy takes into account the interests of people of all ranks and social classes and advocates the exploitation of the full range of existing resources in advancing Chinese democracy incrementally by path dependence.27 China’s incremental democratic development should pursue the following approach. 5.3.1. Chinese Democracy Will Develop Incrementally Based on China’s progress and experiences in democratic development thus far, the establishment of certain economic and political conditions will gradually provide the foundation necessary for democratization. In other words, China’s democratic reforms must follow the accumulation of adequate resources, keeping pace with the establishment of necessary socioeconomic institutions. According to an incremental theory of democracy, a solid basis for the deepening of political reforms must be built upon the support of both the citizenry and the political elites and proceed from stable social conditions. Moreover, in order to attain legitimacy, democratic reform must be pursued within the current political and legal framework in accordance with the Constitution and other established laws. If democratization is to be accepted by citizens, it must promote social progress and advance the public good. In the case that a necessary reform conflicts with current regulations, relevant laws should be adjusted through established legal procedures. 5.3.2. Gradual Democratic Evolution Will Result in Breakthroughs in Political Development The theory of incremental democracy necessitates that China’s overall political development be achieved gradually and steadily, following a strategy of path dependence—that is, development will not deviate drastically from, but rather continue along, the previously established course of progress, becoming an extension of this historical “path.” China’s democratic development and political reform can neither be achieved overnight nor indefinitely repressed. New “democratic increments,” or critical “breakthroughs,” will follow from the establishment of necessary socioeconomic conditions. Rather than constituting a The term path dependence is borrowed from biology by social scientists like American economist Ronald Coase who employ this notion in expressing the theory that social organisms, like their biological counterparts, will suffer too great a cost if forced to deviate fundamentally from their previous conditions or customs. 27

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form of “shock therapy,” these breakthroughs will trigger a gradual process of qualitative change. 5.3.3. Incremental Democracy Will Expand Existing Public Benefits China’s political reforms must focus on adjusting the distribution of benefits among various social interest groups. Based on the principles of justice and equality, China’s political and institutional development must be oriented toward providing the greatest benefits to the greatest number of people, focusing specifically on alleviating social inequity and improving the conditions of the disadvantaged and socially marginalized (i.e., the poor and disabled, as well as the members of ethnic minority groups). All political reforms must increase, rather than diminish, existing social benefits, mirroring China’s economic reforms in their pursuit of Pareto optimality, which is achieved when it is no longer possible to improve a single person’s circumstances without adversely affecting those of another. With incremental improvements in social welfare, citizens will recognize the benefits of political reform, and the support of citizens for political progress will bolster the reform of outdated institutions within the political system. 5.3.4. Dynamic Political Stability Will Incrementally Replace Static Political Stability From the standpoint of incremental democracy, political reforms must be oriented toward maintaining social and political stability. However, rather than upholding China’s historically rooted “static stability” (静态 稳定), which aims to maintain the status quo, incremental democracy advocates a modern “dynamic stability” (动态稳定), which seeks to integrate and balance. According to the traditional static model of social stability, social stability is achieved through “staying still,” or resisting change; thus, the established order is preserved through suppression. Conversely, the dynamic model of social stability seeks to achieve balance through continuous systematic adjustment. Thus, dynamic stability is, in essence, the replacement of old balances with new balances. This model differs greatly from the anarchic turmoil of the Cultural Revolution, for it aims to maintain order through negotiation rather than suppression. Only through the establishment of dynamic stability will we achieve the objective put forth in the political report of the Fifteenth National Congress of the CPC—that is, “to advance reform and development on the basis of social and political

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stability, while maintaining social and political stability through reforms and developments.”28 5.3.5. Political Reform Will Accelerate the Political Participation of Citizens, Resulting in the Establishment of an Orderly Democracy Democracy, simply put, is a chain of institutions and procedures guaranteeing the freedom, equality, and other basic rights of citizens. The essence of democratic politics is the political participation of citizens, or put another way, political participation is the fundamental building block in the establishment of democracy. Therefore, the expansion of legal, orderly, and organized political participation must be a top priority on China’s reform agenda, and the sporadic and chaotic political participation of citizens must be assimilated into the established political framework. 5.3.6. The Concurrent Establishment of the Rule of Law and the Advancement of Democratization Deng Xiaoping inaugurated a new generation of Chinese leadership that, in contrast with previous generations, has consistently emphasized the interdependency of the rule of law and democracy. It is only through the rule of law, as opposed to the rule of leaders, that dictatorship is avoided and the basic rights of citizens are guaranteed. Thus, in order to construct a socialist democracy, China must transition from the rule of leaders to the rule of law—that is, the socialist state must be established under the rule of law. Because China’s democratic development is contingent upon progress in the establishment of the rule of law, the two must be concurrently advanced. The principle objective of the CPC is the “organic combination of party leadership, public welfare, and the rule of law.”29 Indissolubly linked, democracy and 28 Jiang Zemin 江泽民, “Gaoxing dengxiaopinglilun weida qizhi bajianshe youzhongguotese shehuizhuyi shiye quan mian tuixiang ershiyishiji 高兴邓小平理论伟 大旗帜, 把建设有中国特色社会主义事业全面推向二十一世纪 [Holding High the Banner of Deng Xiaoping Theory and Propelling the Cause of Building a Uniquely Chinese Socialism into the 21st Century],” in A Report on the 15th National Congress of the Communist Party of China (Beijing: The People’s Daily, September 12, 1997). 29 Jiang Zeming 江泽民, “Quanmianjianshe xiaokangshehui, kaichuangzhongguoteseshehuizhuyi xinjumian 全面建设小康社会开创中国特色社会主义新局面 [Constructing a Prosperous Society and Initiating a New Phase of Chinese Socialism],” in A Report on the 16th National Congress of the Communist Party of China (Beijing: The People’s Daily, 2003).

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the rule of law are the fundamental components of the socialist political civilization advocated by the CPC. China is presently working to establish a preliminary socialist legal system by 2010, constituting a milestone in China’s democratic development. 5.3.7. The Cultivation of Civil Society and the Reform of the Social Administration System China’s transition toward a market economy and a democratic system of governance has triggered the emergence of a uniquely Chinese civil society, which, in turn, has had a growing impact on China’s social and political life. The development of democratic governance necessitates the more active cooperation of government and civic organizations and the expansion of social autonomy. Thus, China’s political reforms must include the reform of the current social administration system, including the social security, household registry, local selfgovernance, social relief, and public health systems. As China continues to develop economically and politically, the government must support the expanded social and political participation and autonomy of civic organizations. 5.3.8. The Advancement of Incremental Democracy through the Implementation of the Three Road Maps The democratization of Chinese politics should follow the course outlined in what can be described as the “three road maps.” The first of these road maps seeks to establish socialist democracy through intraparty democracy. As China’s only ruling party, the CPC is the power center of contemporary Chinese politics. With more than 70 million members, the CPC comprises the vast majority of China’s social and political elites. Therefore, without the advancement of intraparty democracy, democracy is, in modern Chinese politics, but an empty slogan. The second road map outlines a “bottom up” approach to democratization, beginning at the grassroots level and spreading to the upper levels of government. China’s geographical size and deeprooted tradition of centralized government necessitate the simultaneous implementation of “top down” (i.e., intraparty) and “bottom up” strategies of democratization. The majority of China’s democratic development is currently taking place at the grassroots level with a number of democratic “experiments” being conducted within local communities prior to their implementation nationwide. The third road map outlines a course of democratization based on the gradual

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expansion of limited political competition. Regardless of the specific model adopted, democracy is, most fundamentally, citizens’ free election of political parties and leaders. Hence, democratization is, to some extent, a process of increasing political competition in order to expand citizens’ political choices. Thus, as China’s process of political selection becomes increasingly competitive, citizens will participate in the election of political leaders with greater freedom. 6. Recent Chinese Discourse on Governance Fundamental to the theory of incremental democracy are the concepts of governance and good governance. Only in recent years have these concepts been widely discussed within China’s academic circles. The current Chinese discourse was sparked first by the translation into Chinese of the World Bank’s 1992 annual report on governance and development. During the mid-1990s, Chinese economists undertook the study of corporate governance, while Chinese political scientists explored the applicability of the concept of good governance to Chinese politics. Nonetheless, broadly speaking, Chinese scholars continue to view the concepts of governance and good governance as foreign, precluding the adoption of a uniform Chinese definition of these concepts.30 The terms government and governance are often employed interchangeably within the fields of public management and political affairs; this is also the case in the West. Western theories of governance and good governance were first introduced to China in the 1990s. Within Chinese academic discourse, a number of scholars have attempted to delineate between government and governance, limiting government to the activities of the central and local authorities and expanding governance to include all public management activities, including corporate management. Chinese studies of the notions of governance and good governance have been strongly influenced by a number of Western scholars and organizations, such as N. N. Rosenau, R. Rhodes, and Bob Jessop, and the Commission on Global Governance. Nonetheless, a consensus 30 Thus far, only four articles dealing specifically with the concepts of governance and good governance from the perspective of political science have been published domestically in China. Beginning in 1997, seven Chinese scholars, including this author, undertook a research project on civil society and governance in reform China, which will be completed by the end of 2009.

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has not been reached within the Chinese academic community regarding the nature of governance, which has been alternately defined as “governing without government”; a process of interaction between the state and civil society; the cooperation between the government and the civil, public, and private sectors; a management system based upon consensus with established characteristics; a social, self-regulating network; and so forth. Most fundamentally, governance is a synthesis of the management of public and private affairs, a sustainable process of coordination for the purpose of maximizing the public good. It transcends the dichotomy between state and civil society, public and private, government and nongovernment, and coercion and self-motivation. Like government, governance requires the authority and power to maintain public order and maximize the common good. However, two fundamental differences exist between governance and government. First, although both governance and government are dependent upon authority, the authority of governance does not necessarily rely upon governmental institutions, while that of government requires the establishment of certain governmental structures. Thus, the scope of governance is far broader than that of government. Governance (though not government) is critical to the effective functioning of all communities, from universities, corporations, and interest groups to local clubs, schools, and civic organizations. Second, the powers of government and governance operate quite differently. Government power operates from the top down and generally takes the form of orders, statutes, bureaucratic procedures, and coercion, while the power of governance operates simultaneously from the top down and from the bottom up and is primarily implemented through collaboration, coordination, negotiation, social networking, neighborhood organization, shared identity, and consensus.31 The concept of good government has always existed within China’s traditional political culture. Since the first emergence of government in China, good government has been esteemed as the political ideal. The traditional criteria for the assessment of good government (i.e., justice, efficiency, official honesty, public service, and the rule of law) may still be employed today in the evaluation of a government’s ability

31 Yu Keping 俞可平 “Zhili yu shanzhi 治理与善治 [Governance and Good Governance],” Makesizhuyi yuxianshi 马克思主义与现实 [Marxism and Reality] 5 (1999).

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to fulfill its citizens’ political expectations. However, the traditional Chinese concept of good government is gradually giving way to the more modern and universal notion of good governance. Thus, the author proposes the following criteria for the assessment of good governance based upon the traditional standard for good government: (1) legitimacy, (2) transparency, (3) accountability, (4) the rule of law, (5) responsiveness, (6) effectiveness, (7) order, and (8) stability (see the appendix for details).32 Good governance is, in essence, a political model of the global age. It is the means by which the state returns political power to the people and, as such, is the process whereby citizens participate in political life. Good governance, then, is most fundamentally “good cooperation” between the state and civil society, or between the government and its citizens. Good governance is, in a sense, more concerned with the citizens than with the government, for small communities may well operate without government but not without good public management. Similarly, good government may exist without good governance if the government lacks the active and voluntary participation of citizens who identify with the agenda of government authorities. In short, good governance must begin with the citizenry, or civil society, rather than with the state or the government; therefore, without a strong civil society, good governance cannot be realized. Furthermore, it is critical to good governance that people possess sufficient power, or rights, to participate in elections, as well as in the process of governance. Since the rights of the people can only be established under democratic conditions, it is clear that good governance and democracy are interdependent: good governance cannot exist without democracy and vice versa. Although there may be good government under an authoritarian regime, good governance requires a functioning democratic system. Thus, the objective of China’s political development should be the realization of good governance on the basis of democratic governance. The author concludes this chapter by offering the reader a set of fundamental criteria for evaluating China’s progress in democratic governance that combines universal principles of democracy and good governance with specific Chinese features (see appendix).

32 Yu Keping 俞可平, “Shanzhi 善治 [Good Governance: A Political Model in the Global Age],” Fangfa 方法 [Way] 1 (1999).

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yu keping Appendix: Fundamental Assessment Criteria and Indicators for Research on Chinese Democracy and Governance

Assessment Criteria

Specific Indicators or Areas of Concern

Rule of Law

• Status of laws and law-making procedures • Official and popular understanding of and respect for the rule of law • Actual, practical role of law • Autonomy and authority of legislative and judicial organs • Universal application of laws nationwide across the different bureaus and departments of government

Political Participation

Plurality

Transparency

• • • • • • • • •

Election laws and regulations Scope of direct elections Methods and measures of elections Access to anonymous ballots Method of choosing candidates Ratio of electoral candidates to actual seats Percentage of citizens registered to vote Percentage of citizens voting Extent of participation by socially disadvantaged groups

• • • • •

Extent of participation by women Extent of participation by ethnic groups Participation of democratic parties Participation by private entrepreneurs Professional representation of party and government officials • Regional representation of party and government officials • Age range of party and government officials • Quantity and quality of political resources and media sources, including restrictions on media and publications, independence of media, government censorship, and acts of violence against journalists • Publicity of decision-making processes • Publicity of government activities, including those of public security organs, procuratorial organs, and people’s courts • Public availability of information regarding official procedures • Publication of budgets and expenditure plans • Citizens’ awareness of political affairs • Citizens’ rights of access to political information

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Appendix (cont.) Assessment Criteria

Specific Indicators or Areas of Concern

Human Rights and Citizenship

• Constitutional provisions and laws concerning civil and political rights • Implementation of legal provisions related to civil rights • Respect for and protection of rights of minorities and dissidents under the law and by the government • Citizens’ awareness of human rights • Officials’ awareness of human rights • Citizens’ capacity to defend their own rights • Respect for and protection of rights of the disabled, the weak, and the poor

Supervision of the Party and Government

• Legal rights of citizens to respond to injustice and improper behavior of government • Checks and balances on government and party power • Citizens’ ability to restrict government power • Censorship of mass media critical of the party and government • Role of public opinion in restricting power of the party and the government • Self-disciplinary regulations and practices of the party and government

• Elections within the party • Systems and procedures for selecting party leaders Intraparty at various levels Democracy and • Decision-making organs of the party committees Cooperation between • Relationship between the party and the the CPC and the government Democratic Parties • Relationship between the party and the people • Relationship between the CPC and democratic parties

Grassroots Democracy

• • • • • • • •

Percentage of self-governed villages Percentage of self-governed towns and cities Self-governance of local communities Citizens’ participation in local government proceedings Operation and role of labor representative assemblies Extent of participation by trade unions Extent of participation by women’s federations Direct elections of leadership on township level

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Appendix (cont.) Assessment Criteria

Specific Indicators or Areas of Concern

Civil Organizations

• Quantity and diversity of CSOs • Involvement of CSO members in key decisions of government • Extent of participation by civic organizations • Impact of CSOs on political, social, and economic life • Legal, economic, political, and cultural climates

Legitimacy

• Fairness and regularity of government behavior and policies • Citizens’ ability to identify with the party and government • Impartiality of official allocation of social resources • Extent of legitimacy of party activities • Percentage of corrupt officials • Access to legal system for wider constituencies

Accountability

Responsiveness

• • • • • •

Honesty of officials Responsibility of officials for their behavior Punishment of officials for illegal activities Communication between officials and citizens Respect of citizens’ opinions by officials Official mechanisms for accepting and handling public opinion • Frequency of elections and rotation of officials • Highlighting of incidents of corruption • Public knowledge of government procedures and regulations • Consultative mechanisms of party and government • Mechanisms for redress against restrictive legislation, regulations, administration, judgments, and other legal actions • Change of government policies as a result of citizen advocacy • Party and government initiatives resulting from public deliberation • Innovations within government • Use of alternative mechanisms to resolve disputes • Frequency of interaction between the government and citizens • Citizen attendance of governmental debates • Extent of citizen involvement in the ruling organs of party and government

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Appendix (cont.) Assessment Criteria

Effectiveness

Social Order

Social Stability

Specific Indicators or Areas of Concern • • • • • • •

Cost of government Frequency of government policy failure Efficiency of policies Time spent making key decisions Government capacity to deal with eventualities Citizen satisfaction with government policies Quantity and quality of public benefits provided by the government

• • • • • • •

Structure of the government and party hierarchy Adaptability and authority of law Authority of the party and the government Citizens’ confidence in government Sustainability of existing social norms Political consciousness of citizens Challenges to the existing order

• • • • •

Rate of crime Quantity of ethnic conflicts Regional differentiation Polarization of rich and poor Relationship between the central government and local level governments • Relationship between cadres and the public • Citizens’ sensitivity to social crises • Growth of antigovernment activities such as petitions, protests, demonstrations, and so forth.

AN ANALYSIS OF THE BASIC THEORETICAL PROBLEMS CONCERNING DEMOCRACY IN CHINA Gu Su Translated by Kristin Lauria and Li Peichun 1. An Exposition of the Essence of Democracy The fundamental principle of the rule of law has gained widespread acceptance, for it emphasizes a systematic approach to governance based upon a code of law, rather than the arbitrary rule of the minority. Democracy is, in practice, the system of governance upon which the rule of law is founded; thus, it would be difficult to conceive of the rule of law as built upon the underpinnings of an autocratic system of governance. Although democracy and the rule of law are not one and the same, the legislative democracy contained within the rule of law accounts for the intricate relation of the two. If governance in accordance with law is not freely proposed and approved by citizens or their representatives, the democratic roots of the law itself must be called into question. Such a situation will, at best, lead to the autocracy of a wise ruler and may, even worse, result in the ruthless governance of a despotic ruler under the guise of law. Therefore, we see that democracy and the rule of law are inextricably linked. The rule of law is the means by which a society is governed, and the highest authority of a society is a comprehensive system of laws; within this system, then, democracy is the ultimate means by which decisions are made and policies formulated, through the will of the majority, rather than the minority. The term democracy inspires people’s political demands and passions. In a discussion of democracy, people often first convey the personal significance of the concept of democracy in order to convey their appreciation for the democratic system of governance. Originally, the concepts of democracy and freedom were viewed as belonging to separate fields of study; however, contemporary liberalists have defined the two as complementary to the extent that liberalists are often referred to as liberal democrats.

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In addition to liberal democracy, the vocabulary of contemporary politics includes such terms as social democracy, economic democracy, totalitarian democracy, and so forth, as well as nonpolitical terms such as industrial democracy. It would appear that the concept of democracy itself contains little instructive content; rather, its advocates, depending upon the prominence of corresponding political and economic structures, hope their audience will adopt a similar attitude of appreciation. With the introduction of the notion of democracy to Asian societies, particularly those possessing long histories of autocratic governance, the original meaning of the term was altered significantly, becoming a generalized political label so that any ruler might claim to be the “guardian of democracy” without genuinely considering the implications of such an assertion. Democracy, within the Western societies of the nineteenth century, referred specifically to what today is termed a free and democratic political system. Yet, at the time, a political system of quite the opposite nature prevailed. Amidst seemingly widespread support for democracy during the twentieth century, Nazism and Fascism emerged in direct opposition to the democratic ideal; throughout this period, there were those (including conservatives and advocates of elite rule) who explicitly challenged democracy. Democracy, most fundamentally, signifies the rule of the majority, or the rule of the people, for the ultimate power of determination belongs to the majority or their representatives, rather than to select individuals or minority groups. In ancient Greece, democracy was the system by which aristocrats and free citizens passed resolutions. With regard to its form, democracy may be either direct or indirect. The former refers to a system in which the majority of citizens participates directly in the formulation of policy while, in the latter, policies are formulated by citizens’ elected representatives. Let us consider several specific definitions. In the Western political lexicon, liberal democracy refers to a political system in which a constitution provides explicit protection of individual rights from the infringement of the majority. Social democracy refers to a political system that, in addition to standard democratic freedoms and rights, includes a considerable degree of collective action to ensure social and economic equality. Democracy is much more than a hollow slogan, for certain aspects of democracy have withstood the test of time. Through the global political evolution of the twentieth century, a consensus has been reached on at least three empirical traits of democracy. First, the regular election

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of public leaders results in significant (rather than superficial) changes to policy, as well as changes in policy makers. Second, in the practice of general elections, each and every citizen is entitled to submit one direct vote. Third, the actual rights and freedoms of citizens are ensured throughout the election process. These three comprise the fundamental and critical components of democracy, without which democracy cannot be said to exist. With regard to the first of these, the extent to which those in power respect the free will of citizens depends not upon slogans and pronouncements but, rather, on the autonomous participation of citizens in actual regular elections. Furthermore, these elections must be competitive, constituting a confrontation of differing views; only in this way will elections result in a change of policy and policy makers. The second component of democracy is equally essential. A system in which citizens are denied the right to vote due to moral, political, or other reasons (e.g., the deprival of the voting rights of ethnic minorities and women) cannot be said to be democratic. The last feature of democracy differentiates it from majority rule, for the latter merely requires that all political issues are decided by a majority vote or by the official representatives of the majority, while the rights of the minority may be violated or abused by the vote of the majority. Therefore, constitutional law has evolved to include the protection of minority rights, thereby preventing the deliberate infringement of the basic human rights of certain individuals or groups in the name of majority rule. With regard to certain issues, such as individual convictions, freedom of speech, and lifestyle choice, an authentically democratic system limits the authority of the majority to determine the individual expressions of the minority. In their advocacy of democracy, liberalists take a variety of positions, which, while not always unified and standardized, inevitably lead to the necessity, logicality, and desirability of democracy. Among these, the utilitarians rigorously defend democratic theory, extrapolating out from the operational successes of the democratic system to the desirability of democracy as a form of governance. This line of reasoning is based on the political system of democracy rather than on the actions of individuals within this system. The utilitarians themselves may be divided into two camps: the individualists, who, in the vein of Jeremy Bentham and John Stuart Mill, believe that the outcome of the system’s operation is a collection of individual gains, and the collectivists, who are most concerned with collective or universal utility.

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The advocate of democracy purely on the grounds of material gains fails to recognize the complexity of the cause-and-effect relationship between the operation of a political system and the standard of living of the citizens under that system. For instance, it is entirely conceivable that the standard of living of the citizens of a country ruled by a dictator might, over a period of time, improve, while the people of a democratic society might fail to achieve a comparable standard of living. In such a case, shall we say that dictatorship is superior to democracy? Given this logical shortcoming, utilitarians tend to avoid making an argument for democracy on the sole basis of material utility, pointing rather to the distribution of power among the people as concrete evidence of the paramount advantage of democracy in preventing the concentrated and abusive power of the minority. Within the democratic system, the exploitation of power by authorities is remedied through the democratic process, whereby the citizens may freely revoke the power of these groups. Nondemocratic systems lack this mechanism of self-regeneration. Under these systems, changes in policy usually occur by way of coup, assassination, or the natural death of a political leader, and citizens lack the power to influence policy making following political changes. The utilitarian defense of democracy is deficient in a number of respects. Most prominently, it is apparent that rights, equality, and justice, which constitute the independent grounds upon which the argument for democracy is based, are not always consistent with material gains and productivity. Thus, the greatest justification for putting power in the hands of the people is the necessity of avoiding the personal accumulation of public authority by certain individuals or minority groups, for this power most fundamentally belongs to all citizens collectively. Therefore, at the heart of democracy is the actual authority of citizens for self-determination. While it is self-evident that citizens are equal with regard to their political rights, from a psychological standpoint, citizens must actually participate in the formulation of policy in order to feel as though they possess the power of self-government. This, in turn, results in a heightened sense of social responsibility and a greater degree of psychological fulfillment. When the renowned utilitarian John Stuart Mill discussed the outcome of democracy, he not only employed utilitarian notions but also suggested that through their participation in the democratic process, citizens develop a greater sense of moral wisdom and judgment, while citizens

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under other systems of government remain passive and stagnant.1 He stressed the importance of the democratic system in encouraging citizens to analyze problems, develop and express their opinions, and pursue their interests through political participation, contrasting this with the status of citizens under autocracies who are, in essence, the passive recipients of elite rule. In Mill’s view, support of democracy as the system of governance that best promotes personal development is inevitable for those who value individual growth. In recognizing the innate value of the cultivation of the individual and the development of ethical judgment through active participation in the democratic process, Mill’s argument extends beyond the basic principles of classic utilitarianism, since these are not directly related to the material gains of the individual or society, though their development may support a society’s increase in material gains. Hence, the goal of the rational development of a society’s citizens is, in actuality, quite similar to the theory of natural rights. It is thus seen that the gap between liberalists in the utilitarian camp and those in the school of natural rights is not as great as suggested in papers on that topic. 2. The Fundamental Claims of Liberal Democracy The relationship between democracy and freedom is often the focus of theoretical discussions. Some would even claim that the two are diametrically opposed. However, the majority of liberalists emphasize the complementary nature and interdependency of the two. The American pragmatists, as adamant liberalists, have undertaken comprehensive and exhaustive expositions of democracy on topics ranging from the universal political significance of democracy to the proposal of democracy as a lifestyle choice or a method of education. Sidney Hook suggested that “democratic society is a kind of society in which the government counts on the free consent from the ruled.”2 The “free consent” of the ruled implies that no external force, direct or indirect, has been exerted to influence the governed in expressing their approval

John S. Mill, “Considerations on Representative Government,” in The Philosophy of John Stuart Mill, ed. Marshall Cohen (New York: Modern Library, 1961), 401–406. 2 Sydney Hook, Reason, Social Myths and Democracy (Shanghai: Shanghai People’s Publishing House, 1965), 285. 1

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or disapproval of government policy. A government established upon the consent of the governed is, in practice, one that submits to the will of its citizens, not merely in word but also in deed. Thus, the vote of citizens in opposition to the government is a mandate for change. Obviously, no single government has entirely fulfilled this requirement, for a perfect, flawless democratic system does not, in practice, exist. This does not, however, preclude us from drawing a distinction between the principles underlying democracy and those fundamental to autocracy. If a democratic government relies on the voluntary consent of the ruled, then the programs and policies of governmental institutions must not explicitly conflict with public sentiment and interests. This principle also extends to the economy: within a true political democracy, the rights of citizens to influence economic policy must be manifested in the involvement of their elected representatives in the formulation of these policies. It follows from this line of reasoning that societies failing to uphold economic democracy may not be considered true political democracies. If economic management is not regulated and economic authorities arbitrarily influence political authorities, then the system of political democracy is imbalanced and illusory. Economic democracy refers to a system in which fundamental issues regarding the course of economic development are determined by the forces of production and consumption. While economic democracy presupposes some sort of social system or structure, it does not constitute a government-controlled planned economy. This is because some planned economy gives people the kind of security in a prison— the imprisoned use their freedom to exchange for food, clothing and shelter. However, any planned society cannot guarantee security in its true sense if it can’t provide the conditions for the most liberal criticism, differences, creative individuality and tolerance of different interests. In such a society, the term for “security” is to follow the arbitrary orders of bureaucrats as the rule for life . . . Political democracy with some form of economic democracy is not the same at all. Without political democracy, there can’t be any real economic democracy.3

Economic democracy and political democracy are inextricably linked to the extent that it is impossible to have one without the other. In the absence of economic democracy, a political democracy would fail to provide the right of private property ownership (the resources of

3

Ibid., 290.

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production being monopolized by minority groups or certain bureaucrats so that the majority of citizens would be precluded from owning a share of the public wealth) and, failing to adequately meet the demands of its citizens, would be powerless. Without political democracy, the citizens of an economic democracy would be incapable of influencing policy making and lack the basic freedom of expression. Though holding stocks and shares, they would be unable to participate in the formulation of major policies or express their views on these; thus, the economic democracy would be equally powerless to address the needs of citizens. The “voluntary expression of consent” should be expanded to other areas of civilian life, such as the right to oppose standardization of education, and include all vehicles of cultural communication, particularly newspapers: To a democratic system, the majority principle is very important, but if the majority of the people can’t have access to the source of the information, what they hear is only the official explanation, and if there is only one voice in the classroom, or on the radio, all in all, if all criticizing opinions are labeled as rebellious, prosecuted as heterodoxy, reformed in a concentration camp and rooted by executers, their consent is not in a free sense. That a person’s soul is deliberately confined to fatuity and ignorance is the same as his hands are bound with ropes, losing the freedom of action.4

Therefore, liberalists emphasize the importance of democracy in culture and education, opposing the establishment of standardized solutions and methods of indoctrination in education. For liberalists, in order to allow for the free and full development of the creativity and imagination of students and provide for the emergence of personal interests, the expression of varying views, personal convictions, and ethical models must be permitted in the classroom, for these conditions are necessary for achieving a living democracy. The utilitarian and educational reformer John Dewey also contributed his insightful analysis of democracy. According to Dewey, Democracy is much more comprehensive than a special kind of political format. It’s not just a way officials elected to run the government through general elections, promulgate laws and execute administration, The key of democracy as a lifestyle, to me, lies in the fact that it asks

4

Ibid., 286–287.

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gu su every mature person to participate in the formation of a set of values that will adjust people’s life in a community: this is necessary from the social welfare perspective of the general public to the all-round development of an individual.5

Dewey believed that democracy plays a significant role in the free development of human nature. He argued that the general election and reelection of representatives, the relationship of the elected to the electorate, and various other elements of democracy are merely the means by which democracy is realized, rather than its ultimate goals or values. It would be idolatrous to elevate “means” to the status of “ends.” Therefore, we must recognize that democratic government is merely the best humanly contrived model to meet the demands of a specific period of history. According to Dewey, Democracy is based on the trust of human power, a trust of man’s wisdom and the power of concentrated and cooperative experience. This doesn’t mean to believe that all these are perfect, but think that by giving them the opportunity, they would be able to grow and constantly create the knowledge and wisdom needed for guiding collective actions. Every autocratic and authoritative social action plan is based on one belief that is the wisdom needed is owned by a few elite, whose inherited talents have empowered them to control the action and rights of others. The elite decide the principles and rules and the implementation plans.6

While the procedures employed in the implementation of democracy are mere methods, or measures, they ultimately indicate a certain confidence in human nature and in the wisdom and capacity of humankind. The greatest mistake of despotic rulers is their faith in the superiority of the minority over the majority. This is also the principal distinction between the fundamental convictions of the theories of democratic rule and elite rule, as well as between those of liberal democrats and conservatives. Despite the existence of certain ambiguous arguments, some going so far as to define democracy and freedom as diametrically opposed, there is, in fact, an intrinsic relationship between these two concepts. Democracy cannot exist without the freedom of open competition.

5 John Dewey, Individualism Old and New (Shanghai: Shanghai Academy of Social Sciences Publishing House, 1997), 3. 6 Ibid., 4–5.

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In fact, the very goal of democracy, beyond the formulation of public policy, is the preservation of the citizens’ right to freedom. In the view of most contemporary liberalists, democracy and freedom are inextricably linked; thus, freedom cannot be denounced in the name of democracy nor emphasized at the expense of democracy. Those theories that forcibly pit freedom and democracy against one another, declare the fraudulently democratic “tyranny of the majority” as the one true model of democracy, or take the principle of “the survival of the fittest,” as applied in the disciplines of economics and biology, as the legitimate basis for political governance disregard the potential integration of freedom and democracy under modern societal conditions. 3. An Analysis of the Different Models of Democracy Democracy may be subdivided into its direct and indirect forms. The direct model of democracy was exemplified in the ancient Greek citystate. Although practiced on a relatively small scale—usually limited to a single city—direct democracy was effectively implemented among the free citizens of ancient Greece. Nonetheless, there existed the danger that this democracy might degenerate into the tyranny of the majority. French philosopher Benjamin Constant argued that the people of ancient civilizations regarded freedom principally as a requirement of citizenship—that is, the right to take part in the debate on public affairs and the formulation of policy. These civilizations lacked a clear sense of individuality and, resultantly, did not possess individual rights. The organs of public authority could intervene in virtually every aspect of a citizen’s private affairs and obstruct individual pursuits. Thus, because there was no concept of individual freedom in ancient times,7 the model of direct democracy suited the specific conditions of the ancient city-state. The circumstances of modern citizens differ greatly. Their pursuit of freedom is carried out within the realm of private affairs, beyond the control of the government. With the unprecedented expansion of industry, commerce, and cultural life, the status of politics has dropped somewhat in the lives of citizens. At

7 Benjamin Constant, Liberty of Ancients and Moderns, Public Debate Series, 4th ed. (Beijing: Life, Reading, Knowledge, Joint Publishing House, 1997), 308–309.

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the same time, the pursuit of individual values has increased, as has the demand for the development of individual rights and the understanding of the inviolability of these. Given these developments, direct participation in political affairs has become increasingly complicated, resulting in the emergence of the representative system as a means of guaranteeing the influence of individuals on political affairs. This model of indirect democracy corresponds with contemporary conditions. Within the system of indirect democracy, citizens are neither political bystanders nor the involuntary recipients of the political edicts of authority; rather, this system preserves the privacy of citizens. The freedom of modern citizens is principally represented in a succession of individual rights protected under law from the interference of government; these include the right to free expression and free assembly, as well as the right to choose one’s occupation, manage one’s private property, travel unrestrictedly, and elect representatives.8 However, this comparison of the freedoms enjoyed by moderns and ancients does not necessarily lead to the conclusion that indirect democracy is inferior to direct democracy. Indirect democracy is the model of democracy that best suits the circumstances of modern-day citizens, possessing all of the fundamental characteristics of democracy. The promotion of direct democracy over indirect democracy by some theorists runs counter to common sense. Contemporary indirect democracy simply allows the representatives elected by the citizens to exercise democratic rights on their behalf in general political affairs. In fact, through the characteristic unrestricted communication of viewpoints, open debate, and fierce competition among candidates in an election, ordinary citizens are able to directly influence political affairs. This is increasingly the case with the fundamental transformation of many indirect elections to direct elections. Furthermore, from time to time, all democratic systems resort to referendums when confronting major social issues. Therefore, it cannot be categorically declared that modern systems of indirect democracy diverge drastically from the ancient model of direct democracy. More importantly, we must determine the extent to which a democratic system promotes the free expression of differing viewpoints, genuine competition between candidates for a public position, and the realization of the right of citizens to self-determination.

8

Ibid., 308.

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Formerly, the various models of democracy were the focal point of the debate among political scientists, with certain “neoleftists” advocating direct democracy while failing to offer a concrete structural design or feasibility analysis. According to this argument, the establishment of democracy, particularly direct democracy, would eliminate the transgressions of the market economy and remedy social injustices; however, this viewpoint failed to recognize the fact that democracy is not merely a political model but necessarily includes economic and cultural elements. Proponents of liberal democracy critiqued the neoleftist model as theoretically enticing but practically unattainable, declaring it a fundamentally utopian model. In practice, the Rousseauesque ideal of the rights of citizens has yet to be realized. In fact, quite the opposite practice has often prevailed, with regimes founded under the banner of citizens’ rights veering toward extreme tyranny, as seen in the Nazi rule of Germany, under which neodictatorship prevailed in the name of rights and democracy. In such cases, we find that the basic guarantees of the democratic system are absent. Democracy cannot deny the basic right to freedom of every citizen. Democracy requires the boundaries established by a constitution. Democracy relies upon the division and balance of power and the rule of law. The neoleftists basically disregard these fundamental guarantees of democracy that have been proven effective through the repeated political experiments of the civilized world, becoming preoccupied with the ideal of direct, or absolute, democracy. In so doing, they never leave the vicious cycle of the Populists’ “great democracy.” With regard to economic and cultural democracy, the claims of the neoleftists, from both a macro and micro perspective, are clearly utopian in nature. Liberalists do not deny the significance of these forms of democracy. The interdependence of economic and political democracy is undeniable. In their practical application, the issues of feasibility and the historical stage of development must be confronted. The implementation of theories on the rights of citizens in the economic realm constitutes an ideal yet to be unachieved in human history. While the economic democracies of the West have realized freedom of market access (with equal protection of property) and the public trading of stocks, it would be impossible to allow each and every citizen to have equal input and influence in economic affairs. Economic democracy cannot simply be viewed as the participation of the masses in the management of the economy on a micro scale, but rather requires a comprehensive reform to include the decentralization (or privatization

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and socialization) of ownership, the cultivation of exceptional entrepreneurs, the ample autonomy of enterprises entering the market, and the elimination of numerous bureaucratic interferences. The participation of the masses is just one aspect of enterprise management; as such, its importance should not be overemphasized. The greatest difference between the political and economic forms of democracy lies in their practical feasibility. The former may be universally applied through equal elections in which each citizen has one vote (even when this practice is implemented to the fullest possible extent, it is, nonetheless, impossible to ensure the fully equal participation of all citizens in the formulation of policy). The latter, conversely, cannot be implemented through equal elections, for the influence of a vote within an economic democracy is only as great as the quantity of shares held. Complete equality is unattainable within an economic democracy, for it would, in practice, lead to egalitarianism, which, in turn, would result in the strangling of talent, the obstruction of free competition, and eventually, the sacrifice of a society’s overall productivity. The manipulation of the relationship between citizens’ individual contributions and their economic rewards would also result in inequality. An economic democracy may, indeed, utilize public policy and financial measures to improve the circumstances of underprivileged citizens through the redistribution of income, but these citizens would never possess the same influence and wealth as the privileged; despite these measures, the income disparity would not be easily eradicated. The problems of official corruption and social injustice must be addressed through political democracy, through the democratic supervision of government officials and departments by representative agencies fully reflective of public opinion and interests; in this way, public servants may be held accountable for their actions under the rule of law. More abstract and illusive than the great economic democracy, the notion of cultural democracy is primarily advocated by critics of romanticism and radical literary scholars under the banner of postmodernism and in opposition of cultural hegemony. The notion of cultural democracy is, in and of itself, confusing. We might rightly ask whether it is even possible for citizens to contribute equally to cultural creativity in a manner similar to the equal voting rights of political democracy. If cultural democracy refers to the equal ownership of cultural resources or the rights of appreciation and consumption, then it is indeed more abstract and unquantifiable than economic democracy, for how are we to define the criteria by which to determine the extent

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of a society’s equality of cultural appreciation? On a larger scale, we may focus primarily on the achievement of educational democracy— that is, citizens’ equal rights to education (education free of discrimination)—with the goal of encouraging equal exchange between students and teachers and cultivating a creative, independent, and democratically conscious citizenry. Cultural democracy is, thus, principally limited to quantifiable concepts. With regard to the claim of the intrinsic value of different cultures and the prohibition against the coercion of the minority by the majority, these are analogous to the political issues of ethnic and international relations and concern the equality of subcultures globally. Thus, these fall within the domain of constitutional and international law as opposed to cultural democracy. The issue of greatest contention within political democracy is the relationship between direct and indirect democracy. Ultimately, democracy is the implementation of the political choices of the majority. For some scholars, direct and indirect democracy do not constitute two areas of a single discipline, for in their views, direct democracy enables citizens to exercise freely and consistently their rights of political participation, while indirect democracy, to a great extent, provides citizens with certain rights and later restricts and regulates these. From this standpoint, direct democracy is not the highest stage of indirect democracy, for the two, though frequently used as synonyms, are, in fact, more like antonyms. While direct democracy requires rights without restriction and, thus, conflicts fundamentally with individual freedom, indirect democracy is a form of liberal democracy, the goal of which is to preserve the freedom of citizens. As a compound political system, indirect democracy differs from direct democracy. Modern representative democracy is an amalgamation of constitutional government, republicanism, and democracy.9 However, the issue of fundamental concern here is the nature of democracy: the ultimate determination by the majority (as opposed to the minority) of major political issues and the voluntary approval of the government by a self-determining citizenry. Without choice, competition, and comparison, true democracy cannot be realized. The tyranny of the majority results from the citizens’ lack of true choice; Liu Junning 刘军宁, “Zhijieminzhu yu jianjieminzhu: jinyi haishi fanyi? 直接 民主与间接民主: 近义还是反义? [Direct and Indirect Democracy: Synonyms or Antonyms?],” in Gonggongluncong 公共论丛 [Public Debate Series, 5th ed.] (Beijing: Life, Reading and Knowledge Joint Publishing House 1999), 36–52. 9

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without true choice, that which seems to be democracy is, in actuality, the decision of a manipulated and deceived majority. Direct and indirect democracy constitute different forms of democracy. Therefore, it is not necessary to erect an insurmountable wall between the two. Within modern societies, citizens operate within their own private spheres; however, when it comes to issues of major national significance (e.g., the structure and unity of government, major amendments to a country’s constitution, etc.), national referenda are still essential. With regard to these issues, indirect democracy is not always logical and lawful. There is, at present, a global trend toward advancing the participation of citizens in the process of government, and with rising levels of education, citizens have a greater desire to directly influence major political issues. While democracy constitutes open policy making, autocracy is the formulation of policy by a single individual or a minority. The contemporary development of free and democratic political systems constitutes the combination of direct and indirect democracy. Thus, we cannot reasonably, in theory or practice, endorse one form of democracy over the other.

DEMOCRATIZATION: THE CHINESE MODEL AND COURSE OF POLITICAL DEVELOPMENT* He Zengke Translated by Kristin Lauria and Lydia Gore-Jones Introduction A nation’s degree of political civilization is a comprehensive indicator of the condition of its political development. The evolution of human political civilization is, in reality, a process of political development, just as the transition from a traditional to modern political civilization is a process of political modernization. The establishment of political civilization depends upon the impetus of political development, particularly political modernization. In order to build a socialist political civilization, China’s political development must pursue a course that incorporates specifically Chinese characteristics and be based on a model that corresponds to China’s current domestic conditions. The research on “political development” was initiated [within international academic circles] in the 1950s; however, it was not until the 1960s that this research was deliberately and systematically undertaken . . . the term “political development” finally made its debut in the lexicon of political science in the early 1970s.1

The early 1950s studies of political development relied heavily upon the experiences of Western countries in analyzing the conditions and models of democratization in developing countries. The period from the 1960s to the mid-to-late 1970s was one of dynamic political development and research. Research conducted during this period predominantly focused on developing countries’ expositions of the problems (and solutions) encountered in the process of democratic political development, as well as the formation of theoretical models. After the 1980s, a new trend emerged in the research on political * The original version of this chapter was published in the Journal of the Party School of the CPC (Ningbo Municipal Committee) 2 (2004). 1 F. I. Greenstein and N. W. Polsby, eds., Handbook of Political Science, vol. 2, translated into Chinese by Chu Fuyun (Beijing: Commercial Press, 1996), 148.

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development. While some scholars turned their attention to the study of the public policy of developing countries, others began to focus on the democratic transitions of developing countries. Using Southern Europe, Latin America, the former Soviet Union, Eastern Europe, and East Asia as case studies, they investigated the breakthrough and consolidation of democracy in developing countries.2 Beginning in the mid-1980s, Chinese scholars began to contribute gradually to the research on political development. Early studies were primarily comprised of translations of Western works into Chinese and the introduction of Western theories of political development to Chinese academic circles. From the mid-1990s onward many Chinese scholars began to focus their research on the analysis of China’s political development since the implementation of the Reform and Opening-Up3 Policy, leading to a great deal of in-depth discussion and analysis, the results of which were quite profound. In recent years, the study of “political civilization” has grown significantly, impelling a more thorough examination of China’s political development. Political civilization is the umbrella term for the conditions and results of political advancement. Political development is the process by which this advancement is achieved. Political development refers primarily to the process whereby a political system transitions from undeveloped to developed and from traditional to modern, at the heart of which is the transformation of a nondemocratic political system into a democracy. In this respect, the concepts of political development and political modernization are essentially identical. Also relevant to the study of political development are the concepts of political decline and the crisis of political development. The former refers to the disruption or suspension of the process of political progress, commonly characterized by the stagnation or retrogression of political development. The latter refers to the crises that may be encountered in the course of political transition, including crises of national identity, crises of legitimacy, crises of participation, crises of policy implementation, crises of distribution, and so forth. These crises may be collectively referred

2 For influential works on this subject, see Laurence Whitehead, ed., Oxford Studies in Democratization, 7 vols.; S. P. Huntington, The Third Wave: Democratization in the Late 20th Century (Shanghai: Sanlian Books, 1998); Liu Junning 刘军宁, ed., Minzhu yu minzhuhua 民主与民主化 [Democracy and Democratization] (Beijing: Commercial Press, 1999). 3 Launched by Deng Xiaoping in 1978, the Reform and Opening-Up Policy initiated China’s transition from a centrally planned economy to a market-based system.

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to as crises of political assimilation.4 Synthesizing the arguments of scholars in the field, it may be said that political development consists of three components: 1. The popularization and rationalization of political culture and the gradual formation of a civic culture of political participation 2. Heightened political institutionalization and the emergence of a political system characterized by structural division, specialization of function, and systematic autonomy 3. Continuous improvement of the political system’s capacity to formulate and implement policy effectively The primary foci of the current research on political development are political democratization and the preservation of political stability during the democratization process. The research on these topics explores issues such as the objectives and models of political democratization, as well as the motivation, mechanisms, stages, course, strategies, and tactics of development. The works of Chinese scholars concentrate on the current condition, objective, model, motivation, course, and strategy of China’s democratic political development. 1. The Overall Condition of China’s Democratic Political Development Professor Zhou Guanghui identified ten positive trends in China’s democratic development since the initiation of the reform and opening up:5 1. The relationship between society and the state has transitioned from being highly integrated to moderately independent. Prior to the implementation of the Reform and Opening-Up Policy, the concentration of power in a centrally planned system of administration was evinced in the substantial contraction of social power

4 Lucian Pye, Crises and Consequences in Political Development, cited in Yao Jianzong, “Guowai zhengzhifazhan yanjiu shuping 国外政治发展研究述评 [A Review on Studies of Political Development Overseas],” Zhengzhixue yanjiu 政治学研究 [Studies in Political Science] 4 (1999): 87. 5 See Zhou Guanghui 周光辉, “Dangdai zhongguozhengzhifazhan de shidaqushi 当代中国政治发展的十大趋势 [Ten Major Trends in Contemporary Chinese Political Development],” Zhengzhixue yanjiu 政治学研究 [Studies in Political Science] 1 (1998): 29–42.

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2.

3.

4.

5. 6. 7. 8.

and the unrestricted expansion of state power, to the extent that the former was completely engulfed by the latter. Professor Zou Dang described this system as totalitarian. However, with the advancement of China’s market-oriented economic reforms, a degree of autonomy was introduced, accompanied by the emergence of certain characteristics of pluralization, although these were still limited. The governmental power structure is transitioning from strong centralization to the integration of central and local government authority. Due to the high concentration of power in the upper echelons of the central government prior to the reform and opening up, the process of administrative decentralization has been long and arduous. Since the goal of building a socialist market economy was first proposed in 1992, definitive progress has been made toward establishing a legally legitimate and reasonably balanced relationship between central and local government organs. Political authority has “secularized.” With China’s reform and opening up has come a transition in the way political authorities are viewed: no longer “divine beings,” they are now recognized as mere human beings. This has been accompanied by a shift from the personification to the institutionalization of authority as citizens have begun to evaluate political authority on the basis of actual government performance. The basis of policy formulation has changed from empirical to scientific, leading to early developments and achievements in orderly, systematic policy formulation. Increasing attention has been paid to the systematic analysis of large-scale policy projects, and as a result, policy making has gradually become more methodical. The basis for societal governance has evolved from primarily administrative to legislative. The emphasis on the moral autonomy of the principal organs of power has been replaced by an increasing recognition of the importance of systematic regulation. The focus of political culture has shifted from the masses to the citizens, who have gained an increasingly acute awareness of autonomy, equality, civil rights, and the law. Voluntary political participation has replaced mandatory political involvement and has gained widespread institutional acceptance even in the upper echelons of the governmental structure.

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9. The former radical approach to political development has been exchanged for a more gradual course of progress. 10. The isolationist policy of the previous generation has been supplanted by a comprehensive policy of openness and transparency. Professor Yu Keping identified seven specific accomplishments in China’s political development: 1. The gradual formation of a civic political culture 2. The introduction of a moderate degree of separation of party and state 3. The first emergence of a democratic society 4. The establishment of a socialist country under the rule of law as the primary goal of political development 5. The expansion of the practices of autonomous governance and direct election 6. The early stages of the separation of state and enterprises 7. The major role of local governments in introducing systematic innovations in democratic governance6 In summary, China has made significant progress in three areas of democratic political development: 1. The gradual emergence of a civic political society 2. The continued increase in political participation, particularly at higher levels of government 3. The evolution of the political system to meet the changing demands of citizens Since the implementation of the Reform and Opening-Up Policy, China has pursued a unique course of democratic political development. Sang Yucheng and Yuan Feng outlined four distinctive characteristics of this developmental approach: (1) autonomous, (2) guided, (3) stable, and (4) gradual. Here, autonomous refers to independent choices made in determining the course and model of China’s development, which 6 Yu Keping, “Jiji shixingzengliangzhengzhi gaige, jiakuai jianshe shehuizhuyi zhengzhiwenming 积极实行增量政治改革加快建设社会主义政治文明 [Implement Incremental Political Reform and Accelerate the Development of Socialist Political Civilization],” Lilun dongtai 理论动态 [New Theoretical Development], 1595 (April 2003): 9.

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has, to a great extent, drawn upon domestic resources. Guided points to the central leadership of the Communist Party of China (CPC) in directing the course of China’s political development with the goal of building a socialist democracy through “steady and orderly progress under the guidance of the Party.” For China, political development and political stability are of equal importance. Thus, stable refers to the goal of pursuing a balanced and harmonious path of reform and development. Finally, gradual indicates the necessity of pursuing political development in a steady and orderly manner.7 Among the unique characteristics of China’s political development should be included staggered, for the pace of regional development has deliberately varied based on such factors as the capacity of existing political structures, the degree of political institutionalization, the degree of political democratization, and so forth.8 These fundamental characteristics constitute both a synthesis of China’s empirical achievements in democratic political development and the factors significantly influencing the continued advancement of democratization. In recognizing China’s undeniable achievements and successful experiences in democratic political development, we must also identify the deep-rooted conflicts and obstacles China presently faces in its continued advancement. Since the implementation of the Reform and Opening-Up Policy, the trend of increasingly widespread official corruption has emerged, which if left unchecked, has the potential to escalate to endemic proportions, leading to the deterioration of governance, a crisis of governmental legitimacy, and impotence in implementing government policy. There exist certain dominant and divisive interest groups within the traditional political structure that utilize their positions of power and proximity to resources in the incessant pursuit of personal economic gains. The erosion of state power together with the predominance of destructive interest groups will result in the rise of political conservatism, which, in turn, will impede progress toward the realization of proposed political reforms. Due to increasingly imbalanced wealth distribution and income disparities, unemployment has 7 Sang Yucheng and Yuan Feng 桑玉成、袁峰, “Shiji zhijiao de zhongguo zhengzhi fazhan 世纪之交的中国政治发展 [China’s Political Development at the Turn of the Century),” Zhengzhixue yanjiu 政治学研究 [Studies in Political Science] 3 (1998): 7–10. 8 Shen Qiaohong and Zhang Xiaowen申巧红、张孝文, “Lunzhongguo de tidu zhengzhi 论中国的梯度政治 [On China’s Political Tiers],” Gansu lilun xuekan 甘肃理 论学刊 [Gansu Journal of Theoretical Studies] 4 (2003): 9–13.

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begun to rise. Certain social groups, whose interests have been overlooked in the implementation of reforms, have, as the result of a growing sense of frustration and political estrangement, increasingly tended toward political radicalism. With mounting political polarization and deeply entrenched hostilities, there is a greater potential for the emergence of direct conflict between competing parties, leading to political unrest and crisis, which will obstruct the process of democratic political development.9 2. The Model and Goals of China’s Democratic Political Development It is commonly accepted that the goal of China’s political development is political democratization. However, there is great discrepancy among scholars with regard to the specific model of this democratic development, the most prevalent of which may be summarized as follows: (1) electoral democracy, (2) liberal democracy, and (3) collaborative democracy. In addition to these three most prevalent models, scholars also call for elite democracy, pluralist democracy, or democratic socialism. For those in favor of electoral democracy, free, fair, and competitive elections are the most fundamental benchmark and attribute of a truly democratic society. According to this view, the objective of China’s democratic political development ought to be the gradual ascending implementation of free, fair, and competitive elections, beginning at the grassroots level and expanding ultimately to include the establishment of a national general election. International experts and scholars of transitional democracy generally view the enactment of a free, competitive national election as a breakthrough or benchmark in a society’s democratic development. From a procedural perspective, democratic elections are indeed the most significant component of democratic politics. Advocates of liberal democracy believe that the essence of democracy is best exemplified in those mechanisms of governance that uphold the individual rights and liberties of citizens, such as constitutional

See Xiao Gongqin 萧功秦, “Houquannengtizhi yu ershiyishiji zhongguo de zhengzhi fazhan 后全能体制与 21 世纪中国的政治发展 [Post-Totalitarianism and China’s Political Development in the 21st Century],” Zhanlue yu guanli 战略与管 [Strategies and Governance] 6 (2002): 5–8. 9

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governance under the rule of law, the restriction and regulation of government power, the establishment of an independent judiciary, the separation and balance of powers, freedom of the press, and so forth. Citing examples of countries in Latin America, as well as in India and Asia, liberalist democrats argue that democratic elections alone do not constitute true democracy, for while a country may hold general elections, these do not safeguard the individual rights and freedoms of citizens; thus, according to this view, electoral democracy is merely “pseudo-democracy.” Although the designation of pseudo-democracy is, perhaps, exaggerated, it is clear that electoral democracy is only the initial stage of democratic development; additional measures are required to precipitate the transition toward liberal democracy. Proponents of collaborative democracy believe that at the heart of democratic politics is the construction and sculpting of public will and opinion. Hence, it is perfectly plausible for the members of a society to step outside of the established framework of democratic procedural politics to express, compromise, and achieve their own interests through effective mechanisms of collaboration and negotiation in pursuit of the “common good.” Supporters of this model propose collaborative democracy as an alternative to competitive democracy, presuming the existence of a pluralistic social structure and the concurrent inclusion of certain fundamental elements of liberal democracy, such as constitutional governance under the rule of law.10 Some scholars classify China’s current stage of political development as “administrative politics,” characterized by the incorporation of social elites into organs of governance, broad consultations in the formulation of policy, and the slackening of existing restrictions on media and social groups to accommodate the demands of the public and, to an even greater extent, the elites. In the views of these scholars, this model should be continued over the course of the next decade of political development.11 Administrative politics is, in fact, a form of collaborative democracy, whereby political decision making 10 Lin Shangli 林尚立, “Dui zhongguo minzhuzhengzhi fazhan de yizhongsikao 对中国民主政制发展的一种思考 [Reflections on China’s Democratic Political Development],” Xueshu yuekan 学术月刊 [Academic Monthly] 4 (2003): 19–25. 11 Kang Xiaoguang 康晓光, “Weilai shinian zhongguozhengzhi fazhan zhanlue tantao 未来十年中国政治发展战略探讨 [Exploring China’s Political Development Strategies for the Next Decade],” Zhanlue yu guanli 战略与管理 [Strategies and Governance] 1 (2003): 75–81.

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occurs through consultation and collaboration. The extent to which this model of democracy can replace competitive democracy is debatable; however, collaborative democracy may be of particular use to policy formulation in areas where electoral democracy has yet to be implemented (e.g., in major metropolitan areas).12 We must also keep in mind that the electoral, liberal, and collaborative models of democracy are not fundamentally contradictory. Advocates of elite democracy believe that China should pursue a gradual multifaceted “top down” approach to democratic development with democracy being first cultivated among the social elite and later among the masses, beginning with the Community Party and spreading outward to include nonparty members, and expanding from the central government to local and grassroots governments. A genuine effort to advance intraparty democracy should begin with the expansion of multicandidate elections within the Central Committee.13 Rather than relying on the middle class elite to impel Chinese democratization, this model concentrates on the development of the intraparty democracy of the party elites as the impetus for grassroots democratic development.14 Advocates of elite democracy assert that the exploitation of the organizational resources of the party in the advancement of intraparty democracy is of critical importance. However, the inflexible procedural requirements and regulations restricting intraparty democratization have, in actuality, already been outstripped by democratic developments at the grassroots level (i.e., advancements in autonomous village governance). Advocates of the pluralist model of democracy predict that the current trend toward social pluralism will, in the upcoming decades, continue to gain momentum before ultimately culminating in the

12 See Li Bingdi 李兵第, “Zhongguo chengshihua jinchen zhong de zhengzhifazhan 中国城市进程中的政治发展 [China’s Political Development in the Process of Urbanization, 1 & 2],” Chengshi fazhan yanjiu 城市里发展研究 [Urban Development Studies] 2 & 3 (2000). 13 Hu Wei 胡伟, “Dang nei minzhu yu zhengzhifazhan 党内民主与政治发展 [Inner-Party Democracy and Political Development: Exploiting the Resources within the Establishment],” Fudan xuebao 复旦学报 [Fudan Journal: Social Sciences Edition] 1 (1999): 1–11. 14 Zhen Xiaoying and Li Qinghua 甄小英、李清华, “Yi dangneiminzhu tuijin renminminzhu 以党内民主推进人民民主 [Promoting Populace Democracy through the Development of Inner-Party Democracy],” Qiushi 求是 [Seeking Truth] 12 (2003): 33–35.

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emergence of a uniquely Chinese pluralistic political model sometime around the middle of this century. The proliferation of diverse ideologies and competing interest groups is conducive to the establishment of the balance of powers fundamental to political democracy.15 There is, at present, a great deal of debate regarding the extent to which the multiparty model is a feasible objective for China’s democratic development. Promoters of democratic socialism argue that democracy must develop from a basis of social equality and justice. In this view, democracy must begin with the political and develop gradually to include the economic and social. The greatest strength of this model lies in its value-based contributions to policy, while its most glaring deficiency is a failure to offer ample structural and procedural creativity. In the author’s view, China’s democratic political development should pursue a multilateral course, incorporating elements of multiple democratic models (electoral, collaborative, liberal, etc.), in advancing the unified goal of democratization. More specifically, China’s democratization should be established upon a strong foundation of electoral democracy, manifested in the practice of free, fair, and competitive elections. The current system of grassroots democracy, embodied in the local election of village committees, should be consolidated and strengthened to provide a firm foundation for the gradual development of democracy from the grassroots to the upper echelons of the party organization. This effort should coincide with the implementation of intraparty elections at the grassroots level, while options are explored for an effective method of integrating intraparty and grassroots democracy. Collaborative democracy may also contribute significantly to China’s democratic development. Applied initially in those areas where electoral democracy has not yet been implemented (i.e., within municipal governments), collaborative democracy may be expanded eventually to include both upper and lower levels of government. In confronting complex issues of great public concern, the government should adopt a variety of measures (e.g., incorporating elite viewpoints, conducting policy consultations, holding public hearings,

15 Xiao Gongqin 萧功秦, “Houquannengtizhi yu ershiyishiji zhongguo de zhengzhi fazhan 后全能体制与二十一世纪的政治发展 [Post-Totalitarianism and China’s Political Development in the 21st Century],” Zhanlue yu guanli 战略与管理 [Strategies and Governance] 6 (2002): 1–8.

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holding negotiations, initiating dialogues on the media, etc.) so as to ensure that decisions are made democratically and scientifically and social conflicts are resolved equitably. Constituting a higher form of democratic politics, the fundamental mechanisms of liberal democracy (e.g., constitutional governance under the rule of law, government oversight, an independent judiciary, a stable authority, and a free media) must first be established at the highest levels of government and implemented from the top down. 3. The Mechanisms Motivating China’s Democratic Political Development The question of the mechanisms of motivation in political democratization is of great significance to the theoretical study of political development. A survey of the research in this field revealed five overarching factors motivating China’s democratic development: economic advancement, structural changes to the economy, the healthy development of a civil society, constructive political relations, and globalization. 3.1. Economic Advancement Economic advancement is the most critical motivation for democratic development, for economic progress results in the increased aggregate output of the economy, as well as structural adjustments and improvements. A country’s degree of economic development is measured by such indices as wealth, industrialization, urbanization, and communications. The relationship between economic and political development has been the repeated subject of twentieth-century studies of political science. Western scholars have conducted considerable quantitative research in this field, resulting in the emergence of new approaches, such as the integration of transregional and transtemporal research. This research reveals the direct connection between economic advancement and political development.16 Economic development is the central component of modernization and the principal

16 See Chu Jianguo 储建国, “Jingjifazhan yu zhengzhifazhan de dingliangyanjiu shuping 经济发展与政治发展的定量研究述评 [A Review on the Quantitative Studies of the Relationship between Economic Advancement and Political Development],” Zhengzhixue yanjiu 政治学研究 [Studies in Political Science] 3 (1996): 45–52.

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catalyst for industrialization, urbanization, the popularization of education, efficient communication, the mass migration of populations, and the increase in income levels. Economic development precipitated the dissolution of the traditional agrarian society and gave birth to the modern industrial society, which, in turn, demands the development of a corresponding model of political administration. The reform of the traditional political model, which evolved within the former agricultural society, is thus inevitable, being not merely necessitated but impelled and molded by economic development. At the same time, economic development has resulted in the progressively higher levels of culture and education of the general populace, and accompanying developments in information technology and mass media availability have led to improvements in citizens’ social conduct and ability to organize. Economic development also provides the material and technological foundation for political development and transformation.17 Factors such as accelerated social mobilization—or the process whereby formerly prevalent social, economic, and psychological commitments are eroded and abandoned leaving the populace free to adopt new patterns of socialization and behavior18—expanded urbanization, increased literacy rates, mass media commercialization, and incremental advancements in communication and technologies have profoundly affected the standard of living and level of satisfaction of the citizenry. Departing from old traditions and values, citizens have gradually accepted modern values and patterns of behavior, which, in turn, have been used as benchmarks to evaluate the operations of government and the conduct of officials and provided a basis from which to demand increased political participation. The result of increased social mobilization, this new political environment has provided the foundation, motivation, and opportunity for the reintegration of the political system.19

17 Kong Deyuan 孔德元, “Xiandaihua yu zhengzhifazhan 现代化与政治发展 [Modernization and Political Development],” Neimenggu daxue xuebao 内蒙古大学学报 [Inner-Mongolia University Journal] 3 (1996): 31–36. 18 See Samuel N. Eisenstadt, Modernization: Protest and Change (Chinese translation) Beijing: Renmin University Publishing House, 1998), 2. 19 Kong Deyuan, 孔德元, “Xiandaihua yu zhengzhifazhan 现代化与政治发展 [Modernization and Political Development],” Neimenggu daxue xuebao 内蒙古大学学报 [Inner-Mongolia University Journal] 3 (1996): 31–36.

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3.2. The Transition to a Market Economy The transition to a market economy is a powerful motivation for democratic development. The highly centralized power structure of the traditional political system was erected upon the foundation of a planned economy. Market-oriented economic reforms have gradually compelled China’s transition from a planned economy to a socialist market economy. With the continued growth and maturity of the new socialist market, it has become increasingly apparent that the traditional overly centralized political power structure is no longer sustainable, necessitating the transition to a new political system characterized by democratic collaboration. First, interest-driven political participation is an enduring motivation for democratic development. Only when political participation is based upon the individual interests of citizens is it stable. Under the planned economy, citizens’ interests were highly unified; however, the emergence of diverse and competing interests as a result of the development of the market economy has given rise to the formation of various interest groups and organizations. At the same time, there has been a marked increase in citizens’ awareness of the polity as an authoritative distributor of social values, as well as in their awareness of the extent to which the polity influences their individual lives. The demand for political participation has grown as the result of a greater need to pursue and maintain individual interests. Second, rights-driven political participation is another significant motivator of democratic political development. The market economy is a natural equalizer. Through the production and acquisition of commodities, citizens cultivate the notions of liberty and equality and gain an awareness of individual rights. In exchange for their obligated payment of government taxes, producers and consumers demand that the government accord them certain personal rights, such as the rights to information, participation, and public services. An emerging awareness of individual rights has motivated citizens’ increasing push for political participation. Additionally, changing economic conditions necessitate the implementation of corresponding political reforms. Within a planned economy, a country’s resources are distributed by the state, and in the early stages of the transition to a market economy, the country’s development is directed by the government. As the market plays an increasingly fundamental role in the distribution of resources, and with the progressive influence of free enterprise on

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economic development, the transformation from a planned economy to a market-regulated system and from government-guided development to government-based social services is not only necessary, but inevitable. Lastly, the expansion of market-oriented economic reforms often results in the urgent clamor for the amendment of any outdated political and administrative mechanisms that may obstruct further economic development. The extent to which economic reforms are successful directly impacts a country’s capacity for effective economic development, and a country’s economic progress directly influences the legitimacy of its government. Therefore, even if it is only for the purpose of economic advancement, a government cannot be indifferent to the demands for political development that arise as a result of economic reform. Thus, the comprehensive advancement of marketoriented economic reform is also a significant motivation for democratic political development.20 3.3. The Healthy Development of a Civil Society The healthy development of a civil society is yet another major motivation for democratic development. A civil society is the indispensable intermediary between a market economy and democratic politics.21 A socialist market economy generates a socialist civil society relatively independent of the state. The rise of such a society is manifested specifically in the following characteristics: the initial formation of social strata; the steady emergence of civic organizations; the expansion of social autonomy; and citizens’ increasing acceptance of the fundamental social virtues of rationality, compromise, and tolerance. The growth of such a socialist civil society provides a strong motivation for democratic development. First, over the course of the more than two decades since China’s reform and opening up, a dynamic modern social structure has

20 See Li Jingpeng 李景鹏, “Shilun zhengzhi fazhan de dongli he mubiao 试论政 治发展的动力和目标 [A Tentative Discussion of the Incentives and Objectives of Political Development],” Tianjin daxue xuebao 天津大学学报 [Tianjin University Journal] 3 (1998): 31–36, 52. 21 See Ye Changmao 叶长茂, “Shiminshehui: minzhu zhengzhifazhan de jichu he dongli 市民社会: 民主政治发展的基础和动力 [Urban Civil Society: The Foundation and Motivation of Democratic Political Development],” Gansu shehui kexue 甘肃 社会科学 [Gansu Journal of Social Sciences] 2 (2003): 79–82.

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gradually emerged, manifested in the steady expansion of the middle class and characterized by a reasonable degree of social mobility. This trend is, more specifically, reflected by the following phenomena: 1. The decline of the lower class 2. The consistent movement of agricultural workers into other social strata 3. The steady diminution of the agricultural class 4. The increase of service-sector employees 5. The further diversification and division of the industrial class 6. The emergence and growth of a middle class 7. The growth and expansion of a social stratum equipped to oversee and operate economic resources 8. The gradual establishment of a modern mechanism of social mobility22 The middle class, having achieved a sufficient level of education, is now dissolving into mainstream civil society. Possessing modern values and conscious of their individual interests and rights, these citizens vigorously demand the fulfillment of their right to participate in political affairs and advocate oversight of state power, all the while insisting upon the maintenance of political stability. This middle stratum is becoming a considerable motivating factor in the development of China’s democratic politics.23 Second, there has been a rapid rise in the establishment of civic organizations. In 1997, the number of county-level civic organizations grew to 180,000, with 21,404 of these at the provincial level and 1,848 at the national level; by 1998, over 700,000 civic organizations (varying in structure and purpose but unified in their noncommercial

22 See Lu Xueyi 陆学艺, ed., Dangdai zhongguo shehuijieceng yanjiu baogao 当代中国 社会阶层研究报告 [A Report on the Study of Contemporary Chinese Social Strata] (Beijing: Social Sciences Records Publishing House, 2002). 23 While writing this, the author came across a newspaper report on six Beijing property owners who, in an effort to protect their rights, nominated themselves as People’s Congress representative candidates in 2003. This is a dynamic example of the role of the middle class in promoting democratic political development. For the details of this story, see Wan Xingya, “Beijing liuwei yezhu zijian rendadaibiaodetaiqianchang 北京六位业主自荐人大代表的台前常 [Six Beijing Property Owners SelfNominate as Candidates for the People’s Congress—Their Story Behind the Scenes],” Zhongguo qingnian bao 中国青年报 [China Youth Daily], November 21, 2003.

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nature) had been established.24 The independence and legitimacy of such organizations increased significantly beginning in the 1990s as they became financially independent, raising their own funds instead of relying on government support, as was previously common. With party and government officials no longer automatically assuming leadership roles within civic organizations, these organizations have become increasingly free from party and government interference.25 The rise of relatively independent civic groups has provided an effective mechanism for the organization of political participation among citizens. Constituting or representing specific interest groups, these civic organizations actively demand inclusion in the policy-making process, and through doing so, they are able to convey effectively their individual interests and demands. The growth of these civic groups has become a major motivating force in China’s democratic political development. Moreover, with China’s economic development has come a gradual expansion of social autonomy. In conjunction with the market-oriented economic reforms and the decentralization of administrative authority, the state has gradually withdrawn from certain areas of citizens’ socioeconomic life, providing various socioeconomic groups with greater freedom of operation and autonomy. Through the acquisition of administrative authority for small- and intermediate-scale socioeconomic projects, these groups have gained greater autonomy and discipline. The expansion of social autonomy and the improvement of the self-governing capacity of these organizations have accelerated the transition from a totalitarian state to a limited government, restricting significantly the expansion of state power. Lastly, civil society cultivates civic political culture. The transformation from a culture of political subjects to one of political citizens constitutes an important component of democratic political development. The growth and maturation of a civil society play a substantial role in the cultivation of political civic culture. Unofficial public arenas 24 Minzhengbu 民政部 [The Ministry of Civil Affairs], Zhongguo minzheng gongzuo nianjian 中国民政工作年鉴 [The Yearbook of China’s Work on Civil Affairs, 1999] (Beijing: China Society Publishing House, 2000). 25 Yu Keping 俞可平, “Zhongguo shiminshehui de xingqi jiqi dui zhili de yiyi 中国市民社会的兴起及其对治理的意义 [The Emergence of China’s Civil Society and Its Significance to Governance],” in Zhongguo gongminshehui de xingqi yu zhili de bianqian 中国公民社会的兴起与治理的变迁 [The Emergence of China’s Civil Society and Changes in Governance], ed. Yu Keping (Beijing: Social Sciences Records Publishing House, 2002).

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provide an excellent venue for citizens’ free and rational discussions of public policy. Through such informal debates and discussions, citizens sharpen their political judgment. Civic organizations offer citizens training in the techniques and skills of political participation, providing them with an effective means of political involvement, an alternative to violence and corruption, and an opportunity to cultivate valuable social assets such as trust and reciprocity. Through civic participation, citizens learn compromise, tolerance, and skills of negotiation. All of these aforementioned activities have created the conditions and incentives necessary for democratic political development. 3.4. Positive Interactions between Various Political Forces Positive interactions between various political forces also constitute a substantial motivation for democratic development. Only through the establishment of positive interactive relationships between sociopolitical forces will political disorder be prevented, the interruption of the process of political development be avoided, and political decline be averted. With continuing economic development and reform, the structure and relationship of differing interests are being constantly adjusted. In some cases, the interests of certain social strata or interest groups may be harmed in this process, while in other instances, the benefits of economic development will only very gradually be felt. Members of these disenfranchised groups may, resultantly, employ various measures to defend their individual interests; these may include personally visiting or writing letters of complaint to leaders at the local or national levels, nonviolent demonstrations, or even more radical measures. The director of the National Bureau of Grievance Letters and Visits, Zhou Zhanshun, disclosed that there has been a steady national increase in grievance letters and visits since 1993 and that this rising trend of airing complaints has, over the past ten years, maintained its momentum, showing no signs of declining. Investigations into individual cases reveal that the majority of these grievances, particularly those submitted collectively, fall into eight general categories, the most prominent of which are the following: (1) overdue wages, (2) inequitable burdens on farmers, (3) inadequate compensation for land confiscation, (4) insufficient reimbursement for house demolition and relocation, and (5) preferential treatment of retired military cadres turned entrepreneurs.

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Over 80 percent of these problems have arisen in the course of development or reform, and over 80 percent of submitted cases have been legitimate grievances requiring attention. More than 80 percent of complaints may be resolved through the efforts of party committees and governments at various levels, and over 80 percent of these are problems that can, and ought to, be resolved at the grassroots level.26 Grievance letters, visits, and sit-in protests are common forms of nonsystematic political participation. The extent to which increased use of such measures poses a significant threat to political stability will principally be determined by the degree of systematic political participation at local and grassroots levels.27 The increasing tendency of lower class and disadvantaged citizens to pursue nonestablished methods of political participation may either provoke political unrest or encourage expanded and orderly systematic political participation. Only by means of the political leadership’s active advancement of grassroots and local democratic politics can constructive interactions exist between these social classes, the party, and the government. After the implementation of the Reform and Opening-Up Policy, or more precisely, from the end of the 1980s, the political elite, along with the economic and intellectual elite, formed a governing coalition within which the political elite guaranteed the economic elite conditions conducive to the creation of wealth, while also improving the economic circumstances and social status of the intellectual elite. Moreover, the economic and intellectual elite were, for all intents and purposes, incorporated into the political framework, reciprocating through providing support for the policies and practices of the political elite in their effort to maintain political stability.28 This ruling coalition of the elite gave rise to the development of collaborative democracy. Beginning in the 1990s, just as the diversification of social interests and social strata was commencing, there arose within China’s academic circles a corresponding phenomenon: a pluralization of ideologies manifested in the emergence

26 “Zhongguo baixing shangfang mingyuan zengduo 中国百姓上访鸣怨增多 [ The Increase in the Number of Chinese Commoners Who Submit Grievances to Government Offices],” http://www.zaobao.com.sg/gj/zg005_211103.html 27 See Fang Jiangshan 方江山, Fei zhidu canyu: yi zhuanxingqi zhongguonongmin wei duixiang fenxi 非制度参与: 以转型期中国农民为对象分析 [Nonsystematic Political Participation: An Analysis of Rural Citizen Activity during the Transitional Period] (Beijing: People’s Publishing House, 2000). 28 Kang Xiaoguang, “Weilai shinian zhongguozhengzhi fazhan zhanlue tantao,” 75–81.

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of liberalists, neoconservatives (or neoauthoritarians), neoleftists, and so forth. Each of these offers beneficial insights into the healthy development of society, as evinced in the liberalist pursuit of democracy through individual freedom and enlightenment, the neoconservative affirmation of the necessity of political order and stability in modernization, and the neoleftist concern for the disadvantaged and the lower classes in aspiring to social equality. This multiplicity of competing and complementary ideologies supports the establishment of a multifaceted democratic structure of checks and balances.29 In order to ensure the continued advancement of political democracy, the political leadership must rescind the power and influence of divisive interest groups, dissolving administrative monopolies through further-deepening reforms. Through the effective implementation of legislation, the illegal behavior of self-serving elites must be curbed and the mutually held interests of the citizenry safeguarded in order that a fundamental balance of interests might be achieved and maintained. 3.5. Globalization Globalization also plays a significant role in motivating democratic political development. In the 1990s, following the conclusion of the Cold War, uniform world markets began to form as the mechanisms of market economics spread across the globe. Universally recognized, the policy of economic liberalization has been adopted by the overwhelming majority of nations, and the pace of economic globalization conspicuously continues to accelerate. In order to succeed in multiple states, international economic ventures, such as multinational investments, require a particular political and legal environment, and as a result, the adoption of systematic changes has become a general global trend. Economic globalization, or more specifically, the globalization of the market economy, has precipitated the standardization of global political values and methods of political evaluation. Political values such as democracy, liberty, human rights, security, and peace have, through an increase in political exchanges and media communications, gained widespread global acceptance, gradually becoming universal values and standards of political evaluation. Although the system of politics adopted by a nation is determined domestically, the 29 Xiao Gongqin, “Houquannengtizhi yu ershiyishiji zhongguo de zhengzhi fazhan,” 5. [AU: Please confirm.]

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establishment of the values of democracy and freedom as the universal criteria for evaluating the worth of a political system makes the irreversible trend toward democratic development inevitable; however, the specific course by which a state achieves democratic development and the individual characteristics of a state’s democratic system may vary. Beginning in the 1970s, the third wave of democratization swept the globe, peaking in the 1990s. Whereas twenty years ago, a mere 30 percent of nations worldwide had adopted democracy, today, more than 60 percent of all states select their governments through some form of open, fair, and competitive election, and 118 of these may be considered electoral democracies.30 Since the reform and opening up, China has actively taken part in the process of economic globalization, benefiting greatly. Since acceding to the World Trade Organization (WTO), China’s integration into the global economy has deepened further. China’s political development has been, and is continuing to be, influenced by the rising tide of globalization, with increasing openness leading to gradual democratic development.31 Economic globalization has provided a powerful external impetus for China’s democratic political development, requiring a reform of the excessively centralized political power structure; promoting the socialization of state power; demanding the expansion of economic, political, and social freedom and autonomy; and compelling increased political openness and transparency, greater economic, political, and social equality, and a higher degree of standardization and legalization within the political process. Following China’s accession to the WTO, the conflict between the growing demand and the actual resources for democratic development necessitated China’s proactive advancement of democratic politics in a concerted effort to establish political openness, participation, service, and obligation under the rule of law.32

30 Samuel Huntington, The Third Wave: Democratization in the Late 20th Century, trans. Liu Junning et al. (Shanghai: Sanlian Books, 1998). 31 Liu Shijun et al. 刘世军等, “Quanqiuhua yu zhongguo zhengzhifazhan de jiazhi xuanze 全球化与中国政治发展的价值选择 [The Process of Globalization and China’s Political Development Value Choices],” Xuexi yu tansuo 学习与探索 [Studies and Explorations] 4 (1997): 92. 32 Xu Hongwu and Zheng Shucun 徐鸿武、郑曙, “Jingji quanqiuhua he zhongguo shehuizhuyi minzhu zhengzhi chuangxin 经济全球化和中国社会主义民主诊治 创新 [Economic Globalization and China’s Innovation in Socialist Democratic Politics],” Guojia xingzheng xueyuan xuebao 国家行政学院学报 [ Journal of the Institute of State Administration] 6 (2002): 15–19.

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4. China’s Selection of a Course of Democratic Political Development With regard to the course of political transition, China’s democratic development will continue to pursue a path of incremental democratic evolution. During the first two decades of the policy of reform and opening up, China’s characteristically incremental approach to democratic development has proven extremely successful, and as a result, future democratic developments will continue along this course of gradual evolution. Professor Yu Keping summarized the fundamental components necessary for incremental democratic development: 1. The establishment of democratic politics requires sufficient “stock,” or actual political force, within the existing political and legal framework to provide legal legitimacy. 2. With each breakthrough in democratic development, new stages of development must be added to the original foundation in order that this increase in “stock,” or new stage of development, possesses legitimacy both in legal terms and in relation to social advancement and public well-being. 3. Democratic political development is a slow and gradual process. As a concrete extension of historical developments, China’s democratic development must continue along this historically defined path. 4. Democratic development should be consistent with the Pareto principle, (i.e., previously nonexistent political interests should, to the greatest extent possible, be gradually increased without damaging previously existing interests). 5. Advancements in intraparty and grassroots efforts should constitute the principal breakthroughs in current democratic development.33 An incremental route of democratic development requires the establishment of systematic, methodical, and standardized political procedures and participation and the cultivation of a socialist civil society through which civic organizations and citizens themselves play an active role in the establishment of a democratic polity. It demands

33 Yu Keping, “Jiji shixingzengliangzhengzhi gaige, jiakuai jianshe shehuizhuyi zhengzhiwenming,” 10–11.

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the implementation of a constitution, the protection of civil liberties, and the restriction of government authority under the rule of law. It requires a strengthened party leadership in order that the party and the government may effectively guide the establishment of a democratic polity. It calls for the encouragement of local governments at all levels to introduce innovative initiatives in the development of democratic politics. It necessitates the establishment of a dynamic mechanism for maintaining political stability and an efficient system for integrating public interests. In short, China must pursue a guided, gradual, stable, independent, and incremental course toward the establishment of a democratic polity. China’s incremental democratic development should pursue a multilateral approach toward a unified goal, advancing simultaneously in multiple areas. First, with regard to electoral democracy, China must adopt a strategy of “bottom up” development. Based on the experiences of Eastern Europe and Latin America, many theories of transitional democracy advocate a “top down” approach to democratization. In the case of China, however, empirical evidence garnered over the course of the past two decades’ implementation of democratic politics reveals grassroots elections as the breakthrough point in China’s advancement toward electoral democracy. The “two votes” system of electing rural party secretaries grew out of the successful democratic election of village committees, and as a result of these achievements, pressure has mounted for the reform of the township-leader election system, leading a number of townships to carry out experimental public nominations and elections, with several conducting direct elections. These breakthroughs in electoral democracy—in the election of village committees, the “two votes” election of party secretaries, and the public nomination and election of township leaders—have resulted from the positive interactions between various political forces (i.e., the central government, local governments, and the general populace) and represent a form of collaborative politics that is mutually beneficial. The further expansion and development of electoral democracy will require the mutual cooperation of and positive interactions between all of China’s political forces and authorities. Adopting a “bottom up” approach to establishing electoral democracy, beginning with grassroots administration and gradually extending toward the upper echelons of government, is tantamount to the strategy of first tackling easy tasks before undertaking more difficult ones in order to reap greater rewards while minimizing risk, and is apt to be accepted by advocates of this kind of strategy.

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Second, with regard to collaborative democracy, China must first outline a strategy for the implementation of collaborative democracy in metropolitan areas and then expand this policy gradually upward and downward to include grassroots and national levels of government. With the rise of industrialization and urbanization, cities are gradually becoming the nuclei of citizens’ political life. Thus, municipal policy making and governance are progressively intertwined with the critical interests of citizens to the extent that there is a heightening demand among citizens to participate in and influence the decisions of municipal governments. Successful collaborative democracy requires both the contribution of well-educated, rational independent thinkers and the establishment of specific, unofficial public venues. These conditions are most easily met by urban residents in urban settings. Collaborative democracy should first be promoted in large- and medium-sized cities and then gradually extended to smaller cities, towns, and even rural areas, simultaneously expanding gradually to include provincial and even national levels of government. Municipal authorities should be encouraged to actively explore a diversity of forms for the development of collaborative democracy, including the assimilation of elites, policy-making consultations, public hearings, negotiations, media discussions, and so forth. Collaborative democracy should center on the issues of greatest concern to the general public, such as the demolition of old housing and the resettlement of residents, the increase of urban utility prices, the availability of employment and social security, effective city management and law enforcement, and so forth, with the goal of providing all participants with the opportunity to freely express their interests and perspectives and engage in policy-making procedures. The role of collaborative democracy in maintaining political stability in urban areas should not be underestimated. Lastly, China’s liberal democratic development must take a “top down” approach, for, as stated earlier, liberal democracy is the highest form of democratic politics. The very nature of liberal democratic mechanisms, including constitutional government under the rule of law, limited government, an independent judiciary, a free press, and impartial oversight of the balance of powers, necessitates that such a top-down strategy be pursued. The establishment of constitutional governance under the rule of law and an independent judiciary will require judicial reforms, specifically, reforms that combat the current tendency to subordinate the judiciary to the role of an administrative organ at the local government level; such reforms should obviously not be conducted by local-level governments. Effective restriction of

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government power will require the adjustment of current government functions. Even if local governments were capable of carrying out necessary judicial reforms, unless the operations of the central government were also amended, these local bodies would soon resort to previous procedures and methods. The establishment of a free media and checks and balances on government authority are issues to be addressed through the reform of national laws and the political system and, as such, must be initiated by the central government. 5. Strategies and Tactics for China’s Democratic Development The strategic objectives of China’s democratic political development are threefold: 1. To strengthen the development of China’s political system in order to improve the institutionalization and standardization of political participation 2. To enhance the establishment of China’s political capacity, or more specifically, to improve the respective operational abilities of the polity and civil society and establish a cooperative partnership between the two 3. To expand the construction of a political culture in order to popularize political civic culture and encourage the secularization and rationalization of this culture The realization of each of these objectives will require the adoption of separate strategies (i.e., for building a political system, for enhancing political capabilities, and for constructing political culture). At the same time, specific supplementary tactics are also needed in order to achieve the strategic objectives of democratic political development. Most fundamentally, these tactics must resolve the manner and order in which each of these separate strategic objectives and the specific goals contained therein are to be achieved. First to be adopted among the tactics for China’s democratic development should be that of “prioritizing economic development while giving due consideration to political development.” A significant aspect of China’s strategy of democratic development is the continual advancement of political reform and development as necessitated by economic reform and development, in order to incorporate political

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and economic reforms.34 The tactic of “prioritizing economic development while giving due consideration to political development” signifies that administrative reforms are of greater import than political reforms and that the development of the government’s operational capacity is prioritized above the expansion of political participation. This is because effective government and limited authority are imperative for the development of a strong market economy, whereas the implementation of administrative reforms and the development of government capabilities correspond with this imperative. The expansion of the level and scope of political participation must be gradually pursued in order to correspond to the maturity of the market economy and civil society. While democratic political development must not be allowed to fall behind economic development and reform, it must also not surpass the advancement of the latter. The second tactic to be adopted in China’s democratic political development is “prioritizing the maintenance of political stability whilst giving due consideration to the expansion of political participation.” While some identify political stability and political democracy as the two major objectives of political development, others regard political stability as a prerequisite for political development. In any case, the correct management of the relationship between the expansion of political participation and the maintenance of political stability is an issue of critical import to China’s current political development.35 For China, “stability supersedes all else,” and thus, the maintenance of political stability should be the most extensively examined issue in China’s political development. At the same time, we should strive to establish a dynamic mechanism for maintaining political stability rather than maintaining static stability through the adoption of forceful measures. In order to develop a dynamic mechanism of political stability, it is necessary to establish effective measures for integrating and balancing interests, while expanding the orderly political

34 See Huang Weiping 黄卫平, Zhongguo zhengzhi tizhigaige zonghengtan 中国政治体制 改革纵横谈 [A Broad Discussion of the Reform of China’s Political System] (Beijing: Central Compilation and Translation Publishing House 1998). 35 Wang Yongcheng 汪永成, “Lun dangqian zhengzhifazhan mubiao de cixu he shixian Celue 论当前政治发展目标的次序和实现策略 [On the Order of Objectives of the Current Political Development and the Strategies for Their Realization],” Lilun yu gaige 理论与改革 [Theories and Reform] 5 (2000): 10.

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participation of citizens and providing clear channels whereby citizens may express their interests and demands. The third tactic is prioritizing electoral democracy whilst giving due consideration to the collaborative and liberal forms of democracy. Electoral democracy is the most fundamental component of democratic political development. In order to construct the edifice of democratic politics, we must first establish a solid foundation. The tactic of prioritizing the development of electoral democracy gives precedence to the development of grassroots democracy over that of central government democracy. The cultivation of democracy from the grassroots up has a number of advantages, such as low implementation costs and easily consolidated results, as well as a strengthening of the centripetal force of the central government.36 Collaborative democracy should be actively promoted at levels of governance not yet reached by electoral democracy, taking the form of consultations, hearings, negotiations, dialogues, and so forth, in order to establish a logical and democratic decision-making process. Just as collaborative democracy is a critical component of democratic development, so is liberal democracy essential to democratization. The central government should incrementally develop the mechanisms necessary for liberal democracy, including such measures as the reform of the judiciary, the adjustment of government operations, and the implementation of legislation on the rights of the media. Fourth, the development of democratic politics should adopt an approach that prioritizes intra-Party democracy whilst giving due consideration to popular democracy. The CPC is China’s ruling party; as a result, intraparty democracy serves as an example and motivation for popular democracy. The development of intraparty democracy, through tapping into resources already existent within the establishment, activating the democratic elements within the current system, and awakening dormant systems within the Constitution and supplementary legislation, is of great significance. Such an approach will also enhance the CPC’s appeal to the general populace. Fundamental to the development of intraparty democracy is the introduction of a democratic electoral system and the apparatus of competition within the party. The development of intraparty democracy should begin not

36

Ibid., 11.

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within the upper echelons of the party, but rather within grassroots and local-level party organs. The ultimate goal of intraparty democracy is not the establishment of democratic elections within the party itself; rather, it is the democratization of the current manner in which the party nominates the leadership of state power organs in order that only the most qualified party members may be recommended for leadership positions within the bodies of state power. Thus, democratic elections within the party should be associated with democratic elections within the organs of state power, particularly within the People’s Congress. Elections held at the grassroots levels of these two power organs should help to precipitate the establishment of a ruling party that both governs and is elected in accordance with law. The fifth tactic to be adopted in China’s democratic political development is prioritizing the development of the operational capacity of the State whilst duly considering the advancement of the functional capacity of civil society. The improvement of political capacity includes three components: the capacity of the state, the capacity of civil society, and the cooperative partnership between the two. Given the motivational role of the state in the evolution of civil society, as well as the significant part played by the state in the partnership of the two, the improvement of the functioning capacities of the state should be given priority. Government competency should be enhanced through innovative mechanisms aimed at improving government management in areas such as policy implementation, finance, oversight, legality, and social services. As a result of socioeconomic advancement, the government-dominated model of development is also evolving, with the roles of the private and civic sectors gradually expanding. The increased capacity of civil society not only promotes socioeconomic growth but also contributes to democratic political development. Meanwhile, the issue of establishing an equal partnership between the state and civil society should also be added to the agenda for future discussion. The sixth tactic recommended for China’s democratic political development is the prioritization of the development of mainstream political culture, whilst focusing duly on political sub-cultures. In the process of political cultural development, priority should be given to the establishment of a political culture that most completely corresponds to the prevalent political and economic systems in order that mainstream ideology and political values may guide society’s political conduct. There presently exists a roughly defined ideology that

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corresponds to both the market economy and authoritative politics, but its theoretical structure is still in the early stages of development.37 The establishment of a mainstream cultural theory requires the participation of academics in order that political values may be incorporated from a number of schools of thought and for the purpose of increasing the influence of mainstream ideology through productive political and social work. While prioritizing the development of mainstream political culture, we must also be aware of the developmental trends of political subcultures so that radicalism, extremism, and irrationality may be replaced by tolerance, moderation, and rationality.

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Kang Xiaoguang, “Weilai shinian zhongguozhengzhi fazhan zhanlue tantao,”

PART TWO

DEMOCRACY AND PROBLEMS OF GOVERNANCE

A SURVEY OF CIVIC CHARACTER AND ELECTORAL REFORM IN CHINA* Cai Dingjian Translated by Kristin Lauria Introduction Is it possible for China to expand the scope of direct elections to further democratize its electoral system? It has long been believed that economic and cultural backwardness combined with the insufficiently developed civic character of the citizenry precluded China from conducting impartial large-scale democratic elections without potentially inciting social unrest. This has been the view of many of the leading elite in China’s modern history. A number of Chinese philosophers, such as Kang Youwei, Liang Qichao, and Sun Yat-sen, advocated democracy and constitutionalism in theory, while holding a certain disdain for the common people. Kang Youwei, for example, argued that ordinary Chinese citizens were incapable of exercising a high degree of freedom and rights, likening the masses to children who must not be allowed to climb the wall and play on the roof before learning to walk.1 Revolutionary leader and pioneer of republicanism Sun Yat-sen contended that once freed from the slavery of feudalism to become their own masters, the Chinese masses would be unprepared to lead and, with the establishment of democracy, would become anarchical and unruly.2 Mao Zedong and other leaders of his generation professed great faith in the masses during the revolution but, after establishing the People’s Republic of China, failed to implement democratic elections due to the economic and cultural backwardness and lack of civic quality that characterized the Chinese society of their day. These

* This chapter was originally published in Zhanlue yu guanli [Strategy and Management] 2 (2003). 1 Tang Zhijun, ed., “Lamenting Parliamentarianism,” in Kang Youwei: Essays on Politics, vol. 2 (Beijing: Zhonghua Books Co., 1981). 2 Sun Yat-sen, “The Revolution’s Success Depends Wholly on the Divulgation of Our Doctrine,” in Sun Yat-sen: Complete Works, vol. 2 (Beijing: Zhonghua Shuju, 1982).

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early leaders proposed that, while temporarily restricted, the thorough development of democratic elections should follow the establishment of necessary conditions. Fifty years later, China’s economic, political, and cultural conditions have changed considerably. As the result of a number of electoral reforms during the past twenty years, the fundamental principles of just and anonymous general elections have been implemented in the direct election of People’s Congress representatives at the village and town level. However, this limited degree of progress in the implementation of democratic elections betrays an enduring conviction of China’s backwardness and civic inadequacy. In order to obtain greater insight into the effects of this theory on the development of China’s election system, the Research Center on the People’s Congress and Legislature at Peking University conducted a survey of twenty-five hundred Chinese citizens in twenty areas nationwide,3 the responses to which were then subjected to a thorough sociological analysis.4 The author has expanded upon this study, conducting individual on-site interviews and synthesizing his research and analysis along with the findings of the Peking University survey. This study demonstrates the inaccuracy of the long-held theory concerning the “insufficiency of Chinese civic character to participate in democratic elections.” Furthermore, this study indicates that the most decisive factors in citizens’ electoral behavior are the following: (1) topical interest in the issue(s) being put to a vote and (2) the perceived fairness of electoral procedures. 1. Level of Education and Electoral Behavior Empirical evidence would suggest that as a form of political behavior, electoral tendencies are directly correlated with the education level of the electorate; the results of this survey corroborate this theory.

Of these questionnaires, 1,950 copies, or 85%, were returned. The questionnaire, containing fifty-six questions, was designed to allow for a comparative study of the impact of factors such as education, income, profession, political statues, urban versus rural residence, level of local economic development, and previous experience with voter participation in a democratic election resulting in a 150-page report. To view the report in its entirety, see Cai Dingjian, ed., Reports on Elections in China. 3 4

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Based on responses to the question, “Are you willing to participate in the elections of the Representatives to the People’s Congresses?” it is clear that attitudes toward elections vary with the level of education. Responses to this question were divided into the following four categories based on the level of education of the respondents: (1) university education or higher, (2) senior middle school education, (3) junior middle and elementary school education, and (4) illiterate or uneducated. There were no significant differences in the responses of the first three categories of respondents (i.e., citizens possessing some degree of formal education) with regard to their interest in participating in elections. Of those who had received a college level of education or higher, 77.3% were willing to take part in elections, while 21.1% were unwilling or indifferent. Of respondents possessing a senior middle school level of education, 78.1% were interested in participating in elections and 20% were unwilling to participate or uninterested in the election process. Of those with a junior middle school or elementary school level of education, 73.6% responded favorably to the question, while 25.1% were unwilling to take part or uninterested in elections. Those with no formal education possessed a considerably different view of the election process, with only 54.2% willing to vote in general elections and 35.5% unwilling to vote or uninterested in voting. Based on these responses, it would appear that citizens with a college or senior middle school level of education are the most favorably inclined toward the election process, with junior middle school and elementary school educated citizens not far behind; however, those without any education were found to have the least interest in and greatest objection to direct elections. When the question “Are you more likely to vote voluntarily or be compelled to vote by local leaders or by an organization to which you belong?” was posed to the same survey group, responses again varied according to education level. Those who were likely to vote voluntarily comprised 24.2% of those with a college education or higher, 18.3% of senior middle school educated citizens, 14.4% of those with a junior middle school education, and 12.5% of uneducated or illiterate citizens. The members of the last group (i.e., illiterate citizens) were most likely to be influenced to vote by external factors (e.g., the coercion of authorities, the sway of the masses, or the draw of fringe benefits).

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The breakdown of percentages of those voting for external reasons according to level of education is as follows: 28.6% of uneducated or illiterate citizens; 25.1% of those with a junior middle school education; 14.6% of those with a senior middle school level of education; and, unexpectedly, 20.6% of those with a college education or higher. Of course, these percentages reflect the hypothetical responses of the electorate and, thus, may not, in every case, reflect citizens’ actual actions. Why do those with a middle school level of education constitute the most active category of the electorate? A possible explanation may lie in the personal backgrounds of citizens as related to their level of education. Because the majority of survey respondents were smalltown and village residents, education and personal factors are closely correlated. For instance, small-town and village residents possessing a middle school level of education are, generally speaking, more likely to become party members, state workers, or enterprise leaders, resulting in a greater degree of involvement in the electoral process, whereas college-educated villagers tend to be academics who possess higher levels of intellectual independence and self-confidence, as well as a stronger sense of self-worth, and thus, they are less likely to be satisfied with the current electoral mechanisms and more likely to take an active approach to voting. Illiterate citizens or those only possessing the lowest levels of education, in contrast, were much more suspicious of the election process and, as a result, much less willing to participate unless coerced, voting en masse, or seeking personal benefits. When based entirely on voters’ professed intentions, readiness to participate in elections is roughly equivalent to the level of education. However, various external factors, particularly the attitudes of voters toward candidates, as well as their degree of confidence in the electoral process, may alter significantly the proportional relationship between electoral activity and the level of education. Those possessing a higher degree of education may be more willing than those with a lower level of education to participate in an election they perceive to be fair and may be reluctant to vote in, or may even boycott, elections if the procedures are seen as biased or undemocratic. It is thus clear that the level of education is not necessarily the principle determining factor with regard to the willingness of citizens to participate in elections. Included in our study of the impact of the level of education on election participation was another questionnaire aimed at gaining greater insight into the extent to which various factors influence participation in elections. In responding to the question “What do you consider to

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be the principal motivating factor in a person’s decision to participate in elections?” electors were asked to select among the following personal factors (responses were, however, optional): 1. 2. 3. 4. 5. 6.

Level of education Socioeconomic level Personal standard of living Political preferences Personal profit Level of personal authority

The responses in descending order of significance to voter participation were as follows: 4, 5, 6, 1, 2, 3. Thus, it is seen that a greater number of people selected political preferences, personal profit, or level of personal authority as the ultimate motivating factor in voter participation than level of education. However, further analysis revealed that responses to the question of the relevance of the level of education to electoral behavior were greatly influenced by respondents’ levels of education. Responses to the question “Do you think people with higher levels of education participate more actively in the election process?” differed markedly according to the level of education of respondents. Respondents with higher levels of education were more likely to answer affirmatively, while those with lower levels of education more frequently refuted the education-election participation correlation. Of those possessing a university level of education or higher, 41.7% agreed and 29.3% disagreed that citizens with higher levels of education were more active in elections. Conversely, 31.5% of uneducated or illiterate respondents agreed with this view, and 39.6% disagreed. Moreover, when responses to the question of whether those with higher levels of education are more active in the electoral process are categorized according to respondents’ professions, it is seen that a higher percentage of those in professions requiring greater degrees of education, such as lawyers, teachers, artists, scientists, technicians, as well as students, answered affirmatively than did those in professions requiring lower levels of education, such as farmers, laborers, the unemployed, or the self-employed. Thus, it is seen that while those with higher levels of education are convinced of their own greater electoral participation, those possessing lower levels of education do not, in fact, believe their lesser degree of academic achievement significantly

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influences their electoral contributions; therefore, it is apparent that a certain societal bias exists toward those possessing lower levels of education. From the aforementioned, it may be seen that a definite correlation exists between levels of education and political participation. The results of this study confirm the commonly held belief that citizens’ interest in the electoral process increases with their level of education. However, it must be emphasized that the correlation between the level of education and the degree of electoral participation is limited, primarily confined to the realm of perception, for there is no concrete evidence that the two are directly proportional in citizens’ actual electoral conduct. While it is clear that citizens’ level of education has a considerable impact on their electoral behavior, the level of education should not be taken as the sole determiner of citizens’ electoral involvement or ability. 2. An Analysis of the Electoral Conduct of Rural Communities It has long been believed that the backwardness of China’s rural communities and the deficient civic character of rural citizens preclude the expansion of democratic elections in China. However, if it can be shown that China’s rural citizens both possess the maturity and interest to participate effectively in elections, then the primary reason for restricting the spread of democratic elections will be eliminated. Thus, we are especially interested in conducting a thorough analysis of rural citizens’ attitudes toward and interest in elections in order that we may gain greater insight into the complexity of the political consciousness and electoral tendencies of these communities. Ultimately, the surveys indicate that the democratic consciousness and electoral activity of rural citizens have long been underestimated.5 However, unexpectedly, the compiled data regarding the electoral consciousness and conduct of the various categories of voters

In responding to the question, Which groups of people do you believe participate actively in elections? participants were asked to select among the following six groups: (1) Communist Party members and cadres, (2) intellectuals, (3) students of law and political science, (4) farmers, (5) ordinary city residents, and (6) private business owners and entrepreneurs. According to survey results, farmers indefinitely ranked lowest among the groups most likely to participate actively in elections, indicating a widespread social value judgment of the inferior civic character of farmers. 5

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repeatedly indicates a greater degree of electoral awareness and participation among rural citizens than urban residents. The results of surveys conducted on the correlation between citizens’ electoral behavior and their professions also suggest the comparably higher electoral participation of farmers than even students and academics, thus, negating the commonly held notion of the inferiority of the civic character of rural Chinese. Far from being the ignorant masses lacking the understanding and aptitude to exercise democratic rights that they have long been believed to be, China’s rural laborers constitute a community greatly interested in and capable of participating in democratic elections. 2.1. A Comparative Analysis of Voting Activity according to Profession The results of our survey on the degree of citizens’ “willingness to take part in elections” may be classified by profession in descending order from “most willing” to “least willing” as follows: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.

Party and government workers (civil servants) Legal workers (lawyers, solicitors, etc.) Enterprise leaders Teachers Farmers Independently employed Cultural, scientific, and technical workers (artists, scientists, engineers, etc.) Students Industrial workers Retirees Migrant laborers The unemployed

While 80.9% of farmers expressed an interest in elections (ranking fifth overall), only 75.9% of cultural, scientific, and technical workers (ranking seventh), 71.4% of college students (ranking eighth), and 68.4% of industrial workers (ranking ninth) indicated a willingness to participate in the electoral process. Nearly 10% more farmers than college students or industrial workers showed an interest in taking part in elections, indicating the substantial enthusiasm of China’s rural laborers toward democratic elections, particularly when compared with that of urban residents.

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2.2. A Comparative Analysis of the Electoral Activities of Rural, Urban, and Migrant Voters Survey results may be further analyzed to determine the extent to which citizens’ willingness to participate in elections is impacted by their place of residency (i.e., city or countryside). A comparative analysis of the responses of urban residents, rural residents, and migrant workers was conducted. Responses to the question “Are you willing to take part in the election of representatives to the people’s congresses?”6 were classified according to citizens’ residential status as follows: 1. Rural residents 2. Urban residents 3. Migrant workers Of the rural residents surveyed, 81.6% indicated a willingness to participate in elections of People’s Congress representatives, 4.4% were unwilling to take part in these elections, and 12.8% were indifferent. Comparatively fewer urban residents were willing to participate in People’s Congress elections with 72.8% willing to take part, 6.8% unwilling, and 19.4% indifferent. The most significant difference was found in the responses of migrant workers: only 56% of migrants were willing to vote for People’s Congress representatives, while 12.1% were unwilling, and 28.6% were indifferent. The incongruity between the responses of migrant workers and those of their former rural community members is surprising, for it might be assumed that the rural residents’ views would remain unchanged even after migrating to other locations; on the contrary, the data indicates that migration considerably impacts the views of previously rural citizens toward elections and that the significance of elections is substantially diminished in the minds of migrant workers. It is apparent from the aforementioned responses that not only is the interest of rural residents in the electoral process greater than that of urban residents and migrant workers (nearly 9% and 26% greater, respectively), but significantly fewer rural residents expressed

6

Twenty-three subjects didn’t fill out this field.

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indifference toward the election of People’s Congress representatives than did urban residents and migrant workers (7% and 15.8% fewer, respectively). 2.3. Survey Results with Regard to Electoral Attendance Surveys of electoral attendance indicate that rural residents also surpass urban residents in their actual participation in elections. In response to the question “Did you take part in the election of county and township Representatives?”7 62% of rural residents answered affirmatively while only 40.9% of city residents and 26.4% of migrant workers confirmed their participation; thus, the turnout rate among rural residents was more than 20% greater than that of urban residents and 36% greater than that of migrant workers. Only 9.2% of rural voters were “urged by leaders” to participate, while 26.4% of urban residents and 23.1% of migrant workers offered this explanation for their participation in the election of county and township People’s Congress representatives. Additionally, while a mere 2.8% of rural residents were “required to vote,” 6.2% and 13.2% of city residents and migrant workers, respectively, were compelled to vote. Finally, 11.9% of rural voters chose to vote because “everyone else voted,” while 13.8% and 18.7% of the votes of city residents and migrant workers, respectively, were motivated by the participation of others. Among the twelve previously listed professional classifications, farmers and rural laborers constituted the third largest group of self-motivated participants in the election of People’s Congress representatives. Surpassed only by party and government workers (63.4%) and enterprise leaders (61.1%), the percentage of farmers who voluntarily voted in the election exceeded that of legal workers (59%); teachers (52.7%); students (41.2%); retirees (40.7%); the independently employed (38.5%); industrial workers (36.9%); cultural, scientific, and technical workers (33.8%); the unemployed (22.2%); and migrant laborers (14.3%). Thus, it is seen that in terms of their electoral attendance, farmers ranked third among the twelve professional groups, nearly 19 and

7 Two response options offered in the survey are omitted here (i.e., “voting to obtain some peripheral benefit” and “voting to avoid the shame of not doing so”). Those who chose these two responses constituted 3.2% of the total number of those surveyed and were omitted here due to lack of space.

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more than 20 percentage points ahead of students, and scientists, technicians, and industrial workers, respectively. Farmers and rural laborers not only participate actively in current elections but also express keen interest and significant confidence in the potential development of the electoral system. In response to the question “Do you believe that the conditions necessary for the expansion of the direct election of People’s Congress representatives have been adequately established?” 44.1% of farmers, 33.6% of city dwellers, and 31.9% of migrant workers answered affirmatively. Meanwhile, nearly 10% more rural residents (36.4%) than city residents (27.3%) responded “immediately” to the question “When do you believe direct elections should be expanded?” Classified by profession, a significant percentage of legal workers (43%), unemployed workers (38%), and farmers (37.6%) believed that elections should be expanded “immediately,” while only 20% to 30% of those in all other professions agreed that conditions were ripe for the expansion of direct elections, with farmers again ranking third among the twelve professions. Of those who responded “Not until a greater degree of economic development is achieved” or “Not until Chinese civic character is cultivated,” the majority were teachers; party and government workers; cultural, scientific, and technical workers; and retirees, with these constituting over 60% of each of these groups. Conversely, only 44% of farmers and rural laborers offered one of these two responses, comprising the lowest percentage among the twelve groups.8 Thus, the data indicate that a high percentage of farmers and rural laborers support the immediate expansion of direct elections. Based on a comparative analysis of the aforementioned survey data, it is apparent that the electoral awareness, motivation, participation, and confidence of famers and rural laborers, as well as their confidence concerning electoral reform, is not only strong, but ranks highly, if not highest, in multiple respects among the various professional groups and population categories, surpassing that of university students, intellectuals, and scientific and technical workers. How is it that farmers and rural residents exceed city residents and even university students in terms of their degree of democratic consciousness, interest in elections, and commitment to reform? This is

8 Given four response options from which to choose, 40% may be regarded as relatively high.

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principally due to the implementation in recent years of the direct election of village committee representatives, stimulating and cultivating the democratic consciousness of villagers and attesting to the practical benefits of democratic elections. Contrastingly, the elections in which city residents and university students participate lack practical relevance, and thus, rather than motivating greater participation, they prove frustrating. University students constitute a uniquely idealistic and spirited group, whose experience is altogether separate from that of regular voters, including rural and urban residents, who take a more practical approach to political participation. In the absence of tangible benefits, the latter lack the motivation to participate in elections, for their interest in voting is based entirely on the extent to which the election is of practical relevance and offers concrete benefits. This point became apparent following the implementation of China’s Reform and Opening-Up9 Policy when, despite significant democratic reforms to the People’s Congress electoral process, rural and urban residents, unable to identify any practical benefits to be gained from participation, expressed little enthusiasm toward the newly reformed system. However, following the implementation of the system of autonomous village governance in China’s rural communities, rural residents, recognizing the opportunities to be gained from electing their own leaders, participated enthusiastically and innovatively in the system, indicating that the greatest determining factor in the effective implementation of democratic elections is not the degree of political consciousness or level of education of voters—though these are relevant—but rather the individual benefits to be gained through the election. Many would argue that political knowledge and democratic consciousness are the most decisive factors; however, even more fundamental to electoral participation is individual relevance and gains. Without a clear understanding of this fact, it is impossible to understand the current wave of democratic elections and village self-governance now sweeping the Chinese countryside. Let us now explore the relationship between practical benefits and electoral behavior.

9 Launched by Deng Xiaoping in 1978, the Reform and Opening-Up Policy initiated China’s transition from a centrally planned economy to a market-based system.

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cai dingjian 3. Personal Benefits and Electoral Behavior .

The attitudes of rural communities toward elections were once astutely described by a journalist: Farmers participate zealously in elections when democracy is relevant to their actual interests, but when democracy becomes as a task assigned by leaders and officials that must be completed before deadline, they become apathetic.10

This statement encapsulates the very essence of the message the author hopes to convey in this article. In surveys on democratic consciousness, most subjects, knowingly or unknowingly, regarded voting as a political right, viewing their participation in elections as an expression of this right. Even when voters were aware that they were voting for the sake of practical benefits, few acknowledged this fact. Respondents were asked to evaluate the factors that might impact their attitude toward an election: “What do you think are the main factors determining one’s participation in elections?”11 Participants were asked to agree or disagree with each of the following six answer options, presented here alongside the percentage of respondents who agreed and disagreed in descending order, beginning with the most commonly agreed upon response: 1. “The more politically conscious one is, the more active one is likely to be in the electoral process.” –60.8% of respondents agreed and 12.4% disagreed. 2. “The more relevant an election is to one’s personal interests, the more likely one is to participate.” –47.7% of respondents agreed and 20.7% disagreed. 3. “The greater one’s personal authority, the more likely one is to be active in the electoral process.” –38.2% of respondents agreed and 28.8% disagreed. 4. “The higher one’s level of education, the more likely one is to participate in elections.” –37.6% of respondents agreed and 29.8% disagreed.

10 11

Nanfang zhoumo 南方周末 [Southern Weekend], March 24, 2000. About one-third of participants did not respond to this question.

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5. “The more developed the economy in one’s area, the more active one is likely to be in the electoral process.” –27.9% of respondents agreed and 37.3% disagreed. 6. “The higher one’s standard of living, the more likely one is to participate in elections.” –25% of respondents agreed and 39.3% disagreed. As evinced in these responses, participants overwhelmingly selected political consciousness as the principal determining factor, followed by personal interests, which most considered to be much more of a determining factor than economic conditions, level of education, or degree of personal authority. In China today, the election of People’s Congress representatives is primarily symbolic, having little to do with individual interests. Thus, it is not surprising that “personal interests” was only the second most commonly selected response. From further analysis, it becomes apparent that when casting a vote for a particular candidate, voters select the candidate that most represents their interests. Respondents were asked to select among the following options in response to the question of how to choose a candidate: 1. “Choose an individual who exemplifies an outstanding work ethic” –4.6% of respondents selected this option. 2. “Choose one well-versed in legal and political matters” –29% of respondents selected this option. 3. “Choose an honest and capable individual” –4.7% of respondents selected this option. 4. “Choose a well-known and established political leader” –4.5% of respondents selected this option. 5. “Choose an individual who speaks on behalf of the common people” –53% of respondents selected this option. 6. “It doesn’t really matter” –2.8% of respondents selected this option. From these responses, it becomes apparent that personal interests are a greater motivator in voters’ selection of a candidate than is political consciousness, for only 29% of respondents would choose a candidate “well-versed in legal and political matters,” while 53% of respondents would choose one who “speaks on behalf of the common people.”

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This conclusion is further confirmed by the responses to the question “What motivates you to nominate a certain candidate?”: 1. A desire to elect someone who represents one’s individual interests –42.6% of respondents chose this option. 2. In order to exercise one’s civil rights –29.1% of respondents chose this option. 3. Confidence in the candidate’s overall aptitude –12% of respondents chose this option. 4. Pressure from the leaders of one’s work unit –10.6% of respondents chose this option. 5. A personal interest in politics –5% of respondents chose this option. The responses to these two questions indicate that the principal determining factor in voters’ nomination and election of a candidate is their own interests, as opposed to political consciousness or any other factor, for they are most concerned with electing a candidate who will represent their personal interests. Thus, which of the two major factors, personal interest or political consciousness, most accurately embodies voters’ true motivation in electoral participation? Viewed within the framework of traditional Chinese cultural values, we find that, for the majority of Chinese, to affirm the importance of personal interests over political consciousness or to prioritize individual gains above political awareness would be considered improper and would conflict with traditionally held values. Thus, we should not be surprised that over 60% of respondents agreed that “the more politically conscious one is, the more active one is likely to be in the electoral process,” whereas it is of unique significance that nearly 50% of respondents affirmed that “the more relevant an election is to one’s personal interests, the more likely one is to participate,” for typically Chinese are uncomfortable discussing personal interests. Therefore, the fact that many respondents defined electoral participation as the expression of a high degree of political consciousness and an interest in political issues seems somewhat superficial and may not reflect the true sentiments of voters. This point will be further corroborated by the responses to the following question.

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Respondents were asked to evaluate the potential electoral participation of various categories of citizens based on their profession and/ or place of residence, selecting from the following list of six options the category of citizens “most likely to participate actively in elections”: 1. 2. 3. 4. 5. 6.

Party or youth league members Intellectuals Students of law and political science Rural residents Urban residents Private business owners and entrepreneurs

A seventh, alternative answer was also offered: “those whose personal interests are most closely related to the election, regardless of their status or profession.” Selecting among the total of seven possible answers, 40% of respondents identified the alternative option, “those whose personal interests are most closely related to the election, regardless of their status or profession,” as the most likely to impact citizens’ degree of electoral activity, while the six original response options were chosen by only 18% of participants or fewer. These results indicate that voters recognize personal interests as the factor most relevant to political participation. The results of our survey suggest that among the multifarious factors influencing the electoral activities of voters, electors themselves view political awareness and personal interests as the two fundamental determining factors. Whereas the measure of one’s degree of political consciousness is of a somewhat subjective nature, personal interest is, practically speaking, the actual fundamental determining factor in motivating electoral activity. If elections are perceived as political duties imposed by officials and leaders, voters will indefinitely lack interest in the electoral process. However, when the election is relevant to the personal interests of the electorate, and the electoral process is viewed as democratic and the results legitimate, voters will take an active part in elections willingly; under such circumstances, the electoral participation of voters cannot be ignored.12

12 One of the organizers of the direct elections for the leadership of Buyun Township in Sichuan Province, Zhang Jinming, had an acute understanding of the

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The results of our survey require that we reflect further upon the nature of civic and political participation. The author suspects that those who assert the backwardness of Chinese culture and the lack of civic character of Chinese citizens mistake political behavior for political awareness, for while citizens may lack political awareness, it does not necessarily follow that they also lack democratic qualities. The ultimate end of establishing political systems and participating in political activities is, in fact, the realization of interests. Those who vote in elections are those who feel their interests are at stake, and in fact, they must, for in the absence of participation, their interests are underrepresented. The key issue, then, is whether or not an electoral system provides citizens with ample opportunities to participate. Fundamental to the reform of the electoral system is the relevance of electoral participation to the actual interests of the electorate, for this is necessary in order to motivate the active and innovative participation of the electorate. The political system that provides for the greatest realization of the personal interests of the citizenry is the most effective. The author has learned a profound lesson on democracy through these surveys. The rural residents, long regarded as culturally backwards and ignorant of democracy, turned out in large numbers to participate in this study. The author was surprised and deeply moved by their passion for elections and desire for democracy and has, resultantly, recognized that all citizens, regardless of their profession or level of education, strive to realize democratic rights based on personal interests and reflected in political participation, and that these should by no means be considered a luxury reserved solely for the educated and withheld from the uneducated. Although political conscientiousness, level of education, and degree of economic development may, to a certain extent, influence citizens’ electoral consciousness and behavior, most fundamental to and decisive in citizens’ voting behavior are their actual interests. The relationship relationship between electoral behavior and actual interests, arguing that voters’ degree of interest in or apathy toward an election is determined by the extent to which the election embodies the actual interests of the electorate. She likened the electoral process to a courtship between lovers: If love is motivated by true feelings, lovers will climb walls and break down doors to reach one another; nothing can stand in their way. However, if they lack love, you may shut them together in a room indefinitely, with no result. It would be absurd to claim that Chinese farmers have no understanding of love when you have forced them into arranged marriages.

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between these factors resembles those of a rudder and a ship engine: the political, economic, and cultural factors influencing electoral activity are like a rudder, while actual personal interests are the engine, without which the ship is unable to move forward. An understanding of the relationship between electoral behavior; actual interests; and economic, political, and cultural factors provides the necessary theoretical and practical foundation for electoral reform. Citizens will participate actively in an election so long as it is related to their personal interests and they are aware of this connection. Having gained this insight, there is no foundation from which to assert the inferior civic character of rural Chinese citizens as a justification for limiting China’s direct elections. Reforms to the electoral system must guarantee that those elected genuinely represent the people’s fundamental interests, that the electoral system is linked to the actual interests of the electors, and that elections are a genuine expression of the people’s will. The necessary conditions are already in place for the direct election of township leaders and village governments in rural communities, and this study indicates that these democratic elections will be both effective and achieve positive results. Electoral reforms aimed at expanding and advancing democratization will certainly reinvigorate and motivate the Chinese citizenry toward fuller participation and greater achievements for themselves and for their country.

INTRAPARTY DEMOCRACY AND POLITICAL DEVELOPMENT: EXPLOITING THE RESOURCES WITHIN THE ESTABLISHMENT TO ADVANCE CHINA’S DEMOCRATIC DEVELOPMENT* Hu Wei Translated by Kristin Lauria and Lydia Gore-Jones Introduction Over the course of the twentieth century, democracy has gained universal recognition and global success. As a result, political systems worldwide must not only respect democracy as a basic value, but also confront the practical issues of its implementation. As a socialist state under the “people’s democratic dictatorship” (人民民主专政), China has, both in theory and practice, adopted the governmental philosophy of “the people constituting the true authority of the country.” However, as a result of numerous and varied factors, China’s democratic development is still far from complete, and pressure for democratization is mounting both internationally and domestically. Nonetheless, it must be recognized that much progress toward modernization has been made since the Third Plenary Session of the Eleventh Central Committee of the Communist Party of China (CPC) ushered in a new era of reform and opening-up.1 China’s economic development in particular has drawn global recognition. However, when compared with its tremendous economic progress, China’s political development appears to have fallen behind. The persistence of corruption in certain areas continues to be a major problem, while the power of numerous party and government officials remains unchecked. The democratization of policy-making procedures has yet to be achieved, and the issues

* The original version of this chapter was published in Fudan xuebao [Fudan Journal ] 1 (1999). Publisher’s note: This article was originally published ten years ago in Chinese in a Shanghai-based academic journal and is included to give the reader further context for recent discussions in China regarding democratization. The reader is invited to measure the author’s recommendations against intraparty developments over the last ten years. 1 Launched by Deng Xiaoping in 1978, the Reform and Opening-Up Policy initiated China’s transition from a centrally planned economy to a market-based system.

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of inadequate democracy and the centralization of power remain unresolved. China’s current political condition not only conflicts with the basic values of democratic politics but is also inconsistent with the requirements for establishing a uniquely Chinese socialist state. Beginning from a strategic consideration of the manner in which China shall enter the twenty-first century, we must uphold and preserve the spirit of the philosophy promulgated by the Third Plenary Session of the Eleventh Central Committee of the CPC of “emancipating the mind and seeking truth from facts” (解放思想, 实事求是), examine earnestly the problems thus far encountered in China’s political development, and then practically advance China’s democratic development in order to prolong political stability, as well as improve China’s international image. At the same time, in the course of China’s democratization, specific domestic conditions and characteristics should be considered, including China’s fundamental socialist nature, historical values and customs, and unique political features, as well as its unique historical situation as a recently developing large-scale society. China’s democratization should utilize internal resources in proactively pursuing a steady course of development with uniquely Chinese characteristics. Given current historical conditions, as we commemorate the twentieth anniversary of the Third Plenary Session of the Eleventh Central Committee of the CPC and confront the task of further advancing China’s socialist reform, opening, and modernization, this is a strategic challenge. As put forth by Deng Xiaoping in his work “The Reform of the System of Party and State Leadership,” The goal of our socialist modernization is to advance to the economic level of developed, capitalist countries while establishing a political democracy superior in form and substance to that of these capitalist countries.2

Taking this into account, China should, at this stage, tap into the resources within the existing establishment in pursuing an incremental course of democratization beginning within the party, the central government, and the class of social elites and extending to local and grassroots levels and the masses. Seeking out and cultivating potential

2 Deng Xiaoping 邓小平, “The Reform of the System of Party and State Leadership,” in Deng Xiaoping wenxuan 邓小平文选 [Selected Works of Deng Xiaoping], vol. 2 (Beijing: The People’s Publishing House, 1994), 322.

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areas of democratic growth within the current political system, the central government should first initiate the development of intraparty democracy, taking a realistic and gradual, yet proactive, approach to advancing China’s democratic politics. 1. The Importance and Practicality of Developing Intraparty Democracy A discussion of the practical route of contemporary China’s democratic development must begin with a recognition of the established rule of the CPC, incorporating this reality into an evaluation of China’s course of political development. Practically speaking, the party organization is not only the public authority of modern Chinese society, but it also surpasses any ordinary governmental organization in both structure and function. With regard to function, the entire political process, from the expression and integration of interests to the formulation and execution of policy, is carried out under the authority of the party organization. As for structure, the Communist Party comprises a massive, relatively well-organized extensive network, incorporating over 58 million members and more than 3,480,000 grassroots units and penetrating every aspect and level of society to a degree unmatched by any other political structure. Because of the unparalleled authority of the party organization, many scholarly works on the topic of China’s democratization argue, based on a Western model of pluralistic or multiparty democracy, that only through adjusting the dominant position of the party can democratization be advanced in China. However, this position fails to take into consideration the fact that if the party were to be circumvented in or excluded from the process of China’s democratic development, democratization would either remain unrealized or come at so high a price as to make one question its worth. If, contrastingly, democratization is earnestly pursued within the party, then as a result of the authoritative role of the party in Chinese politics, China’s overall democratic development will be triggered through the domino effect. Thus, it is apparent that the advantages of pursuing a course of democratic development from within the establishment are much greater than those of an extraparty approach. A constructive and practical approach to democratization should not attempt to undermine the dominant position of the party but rather promote a more effective approach to party governance through the development of intraparty

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democracy in order that the style of rule adopted by the party is compatible with the democratic political development of the country. In his report to the party’s Fifteenth National Congress, Jiang Zemin, general secretary of the CPC Central Committee, declared that “the development of socialist, democratic politics is a goal our Party unswervingly endeavors to achieve.”3 With the twenty-first century fast approaching, we must actively work to see this goal realized, accelerating intraparty democratization and establishing the mechanisms whereby intraparty democracy may eventually lead to more widespread national democratic development. The prioritization of intraparty democratization as the most practical course for China’s democratic development is not only based upon a strategic consideration of China’s present political conditions, but also takes into account China’s traditional culture, social conditions, and state objectives, as well as the international environment. In considering the course of China’s democratic development, it is necessary to recognize the absence of a democratic political tradition in China’s history, the present lack of a developed political or civic culture, and the size of the population, as well as the disparity in economic and political development. On the one hand, certain social groups (e.g., intellectuals) already possess a certain degree of awareness of democracy, and it is apparent that a number of the current social conflicts and problems confronting China (e.g., political corruption) may only be resolved through the development of democratic politics. On the other hand, the vast majority of the population is located in rural areas of relative cultural and economic backwardness and, as a result, these individuals lack democratic and political awareness and aptitude. In these areas, not only have the traditional value and power of the clan, as well as feudal superstition, not disappeared, but these have, in recent years, reemerged and appear to be on the rise. Thus, China’s democratization faces a significant dilemma: while China has already reached a point at which it would be impossible not to democratize, at present (and for the foreseeable future), Chinese societal conditions are not conducive to the implementation of large-scale democracy. It follows, then, that democratic development must be pursued incrementally. Recent democratic reforms at the grassroots level, embodied in the establishment of the village committee, represent experiments

3

Renmin ribao 人民日报 [The People’s Daily], September 22, 1997.

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in “bottom up” democratic development. Although these are significant, they do not constitute a major breakthrough in the reform of the national political system. The actual impact of these experiments has yet to be adequately observed and analyzed.4 Taking into account imbalances in economic and political development, it is logical that China’s current democratization should primarily be carried out in areas and by entities with the greatest degree of democratic awareness and aptitude. For example, experiments may be carried out in the large economically and culturally developed communities of Beijing, Shanghai, Shenzhen, Guangzhou, and so forth, seeking opportunities for democratic growth within limited circles of the social elite in order that a portion of the population may first provide a practical example of democracy for the rest of society. Elite democracy may then be expanded gradually to eventually include popular democracy. Upon what foundation shall this elite democracy be established? Given China’s present circumstances, it is undoubtedly to be found within the CPC. While social elites do exist outside of the party, the Communist Party, as the elite organization that is both the largest in scale and broadest in representation, is unmatched by any other social organization.5 Therefore, the advancement of democracy from within

4 Among China’s grassroots democratic reforms, the election of rural village cadres has drawn the greatest attention. Beginning as an experiment in the mid-1980s, the practice was instituted nationwide in 1988. By the mid-1990s, 90 percent of all village committees were elected by villagers, with over 4 million village cadres voted into office. The significance of these reforms has been widely recognized; however, a number of problems within the electoral process require further attention. For instance, while an increased level of competition has been introduced to township and village elections, a number of influential social groups, including malicious interest groups, have manipulated elections for personal gain, utilizing kinship ties, tribalism, and money to influence voters, bribe representatives, and buy votes. The Organizational Department of the Central CPC identified the problem of bribery in a number of local townships and villages during the 1996 elections. In some instances, the foremen of private building companies or private entrepreneurs bought off voters and representatives to ensure their reelection to township party committees and governments and village party branches and village committees. (See The People’s Daily, May 21, 1996). Under current conditions, grassroots democratization faces many obstacles. 5 While deriving from all sectors of society, the majority of Communist Party members comprise the elite levels of various social strata and groups, making the CPC a typical elitist political party. This trend has intensified in the post-Mao era. In recent years, there has been a conspicuous trend toward intellectual and elite development within the party organization. In 1983, only 7.308 million party members (17.8 percent of the total membership) possessed a secondary education or higher. By 1989, more than 14.8 million, or 30.4 percent, of party members had received a secondary level of education or higher. This number jumped to 20.65 million, or 38.2 percent,

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the Communist Party, while upholding the political requirement of the authority of the party leadership, constitutes a reasonable and realistic demand on China’s social structure. Secondly, China faces another fundamental issue at the current stage of democratization: due to the intense competition of the international economic environment, China’s greatest priority at present continues to be economic development. Thus, the short-term goal of political development remains the facilitation of economic progress, which, while necessitating a certain degree of democratization, requires stable social and political conditions and an effective government. Generally speaking, democracy and stability, taken jointly, constitute China’s overarching political objective; however, as circumstances vary with time and place, it is necessary to prioritize our objectives more clearly. As noted by Samuel Huntington, the American model of democracy is often incompatible with the domestic circumstances of modernizing nations, because the ability to conduct meaningful elections presupposes a certain degree of organization: “Men may . . . have order without liberty, but they cannot have liberty without order. Authority has to exist before it can be limited.”6 Democracy and stability may, of course, interact constructively, and democratization will ultimately precipitate political stability. However, the prolonged and complicated process of democratization is often accompanied by political unrest. Based on the experiences and lessons gained from recent global democratization (or what Huntington terms “the Third Wave”),7 democratic transitions do not inevitably lead to “sustainable democratic

by 1994 and 25.514 million, or 43.4 percent, by 1997, more than five hundred times that of the 1949 party membership. In the five years following the party’s Fourteenth National Congress (1992), 99.25 million new party members were recruited, among whom 69.82 million, or 70.3 percent, had a minimum of a high school education. (See The People’s Daily, July 8, 1997.) The level of education of party members is an important index of the party’s elitism. This feature is particularly prominent within the party’s National Congress: 1,407 of the Fourteenth National Congress Party representatives, or 70.7 percent of the total, possessed a three-year degree or higher, and this increased to 83.5 percent by the Fifteenth National Congress. In fact, party representatives themselves are basically the elites from different social fields. Even if they do not have a high level of education, they are model workers, exemplary employees, and so forth. Thus, it is impossible for ordinary party members to become party representatives. 6 Samuel P. Huntington, Political Order in Changing Societies (Chinese translation) (Shanghai: Shanghai Translation Press, 1989), 8. 7 Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century (Norman: University of Oklahoma Press, 1991).

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rule” or democratic consolidation. The outcome is determined by the traditional culture and heritage of the system, as well as by the actual means of transition.8 Therefore, in their present studies of democratization, international scholars of political science no longer focus solely on issues relating to “democratic transition” but are increasingly concerned with mechanisms of “democratic consolidation.”9 If, rather than establishing a sustainable democratic government, democratic transition results in the collapse of political authority, or even the rise of anarchy, then we must seriously question the worth of such a democracy; thus, the need for political development to pursue the union of democracy and stability is apparent. Based on experiences and lessons in democratization drawn from modern societies, China must prioritize both democracy and stability as major objectives of political development. At this present stage, political stability and economic advancement constitute the prerequisites for prudent and viable democratization. Therefore, China’s democratic development must be advanced in a steady and orderly manner within the current systematic framework, exploiting fully the democratic resources within the establishment. Does the advancement of democracy from within the establishment constitute a feasible course for China’s democratic development? From a theoretical perspective, much potential for democratic development exists both within the contemporary Chinese political system and within the internal mechanisms of the CPC. As the fundamental principle and model of China’s political system, democratic centralism constitutes the structural foundation and leadership philosophy of not only the CPC but also the organs of state power and is the defining principle of the political regime. Within the state system, democratic centralism is embodied by the People’s Congress system, which as the organ of state power, occupies the primary and plenipotentiary position in the overall state power system. It is the sole source and terminus of all government authority (i.e., all the powers of the state are granted by the People’s Congress, which may also retract these powers). 8 Michael Mandelbaum, ed., Post-Communism: Four Perspectives (New York: Council on Foreign Relations, 1996). 9 For studies in this area, see Juan Linz and Alfred Stepan, Problems of Democratic Transition and Consolidation: South Europe, South America and Post-Communist Europe (Baltimore: The Johns Hopkins University Press, 1996) and Larry Diamond et al., Consolidating the Third Wave Democracies: Themes and Perspectives (Baltimore: The Johns Hopkins University Press, 1997).

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The National People’s Congress (NPC), more specifically, is the highest organ of state power, possessing legislative and decision-making power, the authority to elect and remove high-ranking state personnel, and the power of legal oversight at the state level. All other state organs and leaders subordinate to, under the guidance of, and supervised by the NPC can neither equal nor supersede its power. Explicitly speaking, the NPC nominates or confirms all of China’s leaders, from the president to the members of the State Council and the Central Military Commission, and from the justices of the Supreme People’s Court to the members of the Supreme People’s Procuratorate; and all of the aforementioned organizations and organs of government are subordinate to the NPC, which may also remove the leaders of these from their positions. These bodies of government, as well as their highranking leaders, must unconditionally recognize the direction of the NPC. Thus, fundamental to China’s intraestablishment of democratization is the issue of the practical implementation of the authority of the People’s Congress as stipulated in the Constitution. With regard to the leadership system of the CPC itself, the party committee system constitutes the principle organ of democratic centralism (or collective leadership). The implementation of the party organization leadership takes the form of collective voting on issues of major import, the outcomes of which are determined by majority vote and may not be revised by individual members of the committee, or even by the committee secretary. The secretary and members of the party committee enjoy equal status under the law, and even on issues of great importance, the secretary’s vote is equal to that of other committee members, being “first among equals” as opposed to presiding over the committee. Individual members reserve the right to hold differing views on an issue but must nonetheless submit to and actively execute the outcome of the vote. Thus, we see that, in theory, the system of democratic centralism demands the collective leadership of the party committee rather than the arbitrary authority of a single individual (i.e., the party secretary). Within the party committee, collective leadership is combined with individual duties, with the party secretary playing a key role in group leadership.10 However, it is On this topic, Deng Xiaoping pointed out in “The Reform of the System of Party and State Leadership” that “Party Committees at various levels must faithfully implement the system of collective leadership together with the division of individual duties. Those issues which should be discussed in the group must be distinguished 10

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apparent that in the actual political process, the system of democratic centralism is not always effectively implemented and sometimes results in various aberrations, but this is an altogether separate matter. We are presently concerned with the issue of the accurate implementation of the party committee system and the principle of collective leadership under democratic centralism, both of which are of great significance in establishing a standard for the implementation of party leadership and lending legitimacy and feasibility to intraparty democratization. We see, therefore, that from a theoretical perspective, China’s fundamental political system contains considerable resources and opportunities for the development and growth of democratic politics. The greatest challenges exist in the improvement, development, and implementation of the present mechanisms. If the starting point for China’s political development and reform is the advancement of intraparty democracy, then the key to advancing intraparty democracy lies in the improvement and development of democratic centralism or, more specifically, in the party committee and collective leadership systems and, more importantly, in the actual implementation of the principle of democratic centralism. In the days to come, a task of major significance in the reform of the political system should be the transformation of democratic centralism into a concrete, systematic, standardized, and up-to-date tool for the advancement of intraparty democracy and the starting point for the growth of Chinese democracy. This is the key point from which we shall fully exploit the resources within the establishment for the purpose of advancing China’s democratic development. 2. One Possible Strategy for the Development of Intraparty Democracy China should adopt a logical and gradual strategy of democratic development—that is, beginning within the party and extending outward from those which are the responsibility of individuals. Serious issues must be decided through group discussion. In the decision-making process, the minority must conform to the will of the majority. This principle must be strictly obeyed. Each member and Secretary has only one vote, and it is not up to the First Secretary to determine the outcome of a decision. Once a decision has been made collectively, it must be implemented by all members individually. Individual duties must be fulfilled by individual members and not shifted to other members” (341). Regrettably, this vision of reform has not yet been fully realized. The current efforts to further democracy within the party should return to this starting point.

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to include nonparty members, spreading from the elite to the masses, and successively moving from within the organs of the establishment to without. Similarly, intraparty democracy should advance incrementally and rationally from a previously identified breakthrough point. In recent years, the CPC has worked diligently to develop the democratic mechanisms already present in the organization. However, due to the dispersion of intraparty democratic resources in multiple directions, these efforts have not been wholly effective, falling short of established goals. In carrying out intraparty democratic reforms, two tendencies must be avoided: making a grand but unfruitful exhibition of democratic reform, or the opposite extreme, abruptly implementing excessive and radical reforms, resulting in political instability and resistance. In order to preclude these potential downfalls, the development of intraparty democracy must adopt the correct strategy. First, “top down” and “bottom up” strategies of democratization should be integrated, while prioritizing the implementation of the former within the central government. A strategic exploration of this point must precede the implementation of intraparty democratization. Why must the central government, as opposed to the grassroots party organs, be the focus of these reforms? This is, on the one hand, a result of the elite nature of Chinese democratization and the inevitable logic of the intraestablishment model of development and, on the other hand, the necessity of the structural and functional capacity of the central party organization. Generally speaking, the higher the reforms are concentrated within the party hierarchy, the greater the degree of elitism and the more established are the conditions necessary for democratic reform. Furthermore, with the involvement of fewer and higher level elites comes a greater capacity for effective implementation of high-level reforms and realization of set goals. Contrastingly, reforms beginning at the grassroots level impact a greater number of people, and because local populations possess a relatively low degree of preparation and skill to participate in democratic development, there is a greater possibility that, in the course of implementing these reforms, control might be lost and negative effects produced. The potential cost and risk of such an approach are, as a result, significantly higher. For the aforementioned reasons, the central government must be the starting point and focus of China’s democratic development, and through effective implementation of central reforms, democratic development should be gradually expanded to party organs at the provincial, municipal, county, and grassroots levels in a strategic

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and systematic manner. It is of particular significance that the present third generation of party leadership, under the guidance of comrade Jiang Zemin, not only holds political authority but also exemplifies an open-minded and democratic spirit, and, possessing the necessary internal and external conditions for democratic advancement, is presented with the unique historical opportunity to advance intraparty democratization. Such an incremental approach to democratization—from within the party to without, from the upper echelons to the grassroots, from the elite to the masses—not only embodies the universal principle of democratic political development, but also reflects the unique logic of China’s democratic development. While in Western history democracy derived from the masses, a mature middle class already existed along with a class of elites who, with the increasing accumulation of economic influence, began to make corresponding demands for greater political power. Thus, the course of Western democratization, to a certain extent, developed from the elite to the masses; this perhaps is a common characteristic of political development. However, certain aspects of Western democratization differ significantly from those of China’s democratic development: first, to a great extent, Western elite democracy was characterized by the economic penetration of politics; however, China has yet to develop a real middle class, and even with the emergence of a middle class, the long-held Chinese tradition of a politically dominated (or bureaucracy-dominated) culture combined with the current socialist system would preclude China from pursuing a route of democratization through the economic penetration of politics (i.e., a model of middle class elite democracy). Much more feasible is the strategy of developing elite democracy from within the Communist Party. Another significant difference between the Western and Chinese models is the “bottom up” nature of Western democratic development characterized by the external economic penetration of the political system. The bottom-up model is much less suitable for China’s democratic development than an incremental “top down” model, exemplified in the adoption of an intraestablishment approach to democratization under the guidance of the Communist Party. Second, the establishment of intraparty democracy within the central government provides a necessary balance in the relationships of the party’s National Congress, the Central Committee, and the Politburo and its standing committee in accordance with both the principle of democratic centralism and the stipulations of the party charter.

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According to the party charter, the party organs of greatest authority are the National Congress and its central committee, with the Politburo, the Politburo Standing Committee, and the general secretary (or chairperson) generated by the Central Committee. However, in actual practice, the reverse often occurs with the chairperson (or general secretary) and the Politburo Standing Committee overseeing the work of the Politburo, which, along with the Standing Committee, supervises the work of the Central Committee (although according to the charter, the Politburo convenes the Plenary Session of the Central Committee); the role of the Central Committee, in actuality, far exceeds that of the party’s National Congress. Thus, critical to the effective development of “top down” intraparty democracy is the effective implementation of the stipulations of the party charter, in order that the party National Congress and Central Committee may execute their fundamental roles. Within the current system, the primary functions of the party National Congress and Central Committee are the formulation of major policies and the election of the party’s central leadership. With regard to the actual practice of policy formulation, however, despite the significant role of these two bodies in this process, which has in recent years expanded, their practical contribution, particularly that of the National Congress, is limited to the mere ratification of previously formulated policy. This is based on the political logic that a greater number of people involved in the decision-making process will result in a lower level of efficiency. This is, more specifically, due to the infrequency with which the National Congress and the Plenary Session of the Central Committee are convened. Nonetheless, the limited role of these fundamental political organs should be expanded; for example, full-time positions should be made available to party representatives in order that their work may be regularized, and plenary sessions should be convened more frequently. However, these measures alone do not constitute a sufficient breakthrough in intraparty democracy, for important everyday policy decisions will still be made by the Politburo and its standing committee. Thus, we are led to the conclusion that in order to fundamentally strengthen the role of the National Congress and the Central Committee, it is necessary to improve their capacity to conduct elections. This last point, therefore, is also the most fundamental. The basic capacity of the National Congress and Central Committee to carry out multicandidate elections must be strengthened in order to increase the

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role of these two organs. It should be noted that the experiments conducted by the central leadership of the party for this very purpose have already had concrete results. Multiple-candidate elections were first carried out within the Central Committee in 1987, ending the policy of “the number of candidates equaling the number of positions,” which was practiced during previous decades. The Thirteenth Central Committee was established through multiple-candidate elections, resulting in the failure of a number of candidates nominated by the central leadership, including several influential cadres, being elected to the Central Committee. Several important party officials were similarly defeated in the 1997 elections of the Fifteenth National Congress. While not all election results have been equitable, this reform of the Central Committee election procedures constitutes a fundamental breakthrough in the development of Chinese democratic politics and should be recognized as such. Of course, the ratio of candidates to seats is still relatively small, and the influence of these reforms on state politics is relatively limited, as they have only been implemented in the Central Committee primaries. Nonetheless, as with all previously nonexistent phenomena, competitive elections will gradually increase in scope and size provided the party continues to advance the reform of the election system, constituting a substantial area for growth in China’s development of democratic politics. Such developments may, for example, take the form of the gradual increase of the ratio of candidates to seats in Central Committee elections, as well as the adoption of a multicandidate system in formal elections. Upon establishment of the necessary conditions, the scope of multicandidate elections may be extended to include the election of the members of the Politburo and even the members of the Politburo Standing Committee. Once established in a standard and systematic manner within the central government, the system of multicandidate elections may be extended to include the election of provincial and municipal party committees and eventually that of county-level and local-level committees. Through this approach of incremental development, China will, by the mid-twenty-first century (or within fifty years), have reached a level of economic development comparable to that of midlevel developed nations, and having, to a great extent, established effective intraparty democracy, this system may then be expanded in order to realize the goal of the democratization of national political life. The improvement of the competitive election system will also provide the opportunity to establish a dynamic mechanism for the promotion and dismissal of

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political leaders, ameliorating the long-standing incongruity of leaders being removed from office only upon reaching the age of retirement. Transitions in leadership have, for China, been problematic since the founding of the People’s Republic. During the Mao Zedong era, leadership positions were permanent, and high-level cadres were principally removed from their posts through political purges. Following China’s reform and opening-up, the abolition of life terms of leadership produced initial results; however, as a result of a failure to differentiate government officials (public servants involved in policy making) from civil servants (public servants involved in daily bureaucratic operations), party and government officials adopted the civil service policy of age-based mandatory retirement, according to which age is the standard for both resignation and promotion, regardless of health, ethical conduct, discipline, competence, or achievement. Such an age-based approach seems imbalanced. However, with the introduction of multicandidate elections, civil servants may be appointed or recruited through examinations and will continue to be subject to the mandatory retirement policy, while high-level party and government officials will be elected to a fixed term of office without any restriction on age. Thus, not only will an open democratic mechanism be established for regulating the entrance and departure from office of cadres at all levels, but a foundation for the development of the public service system will be created. 3. Intraparty Democracy: An Alternative to the Multiparty System? The introduction and gradual expansion of the multicandidate election system within the party’s Central Committee will undoubtedly accelerate the creation of a democratic atmosphere within the party, foster the development of China’s elite democracy, and support the implementation of democratic centralism. The key to the effective implementation of democratic centralism lies in the successful management of the relationship between democracy and centralism on both an individual and organizational level. While both democracy and centralism are manifested individually, as well as organizationally, the foci of these manifestations differ somewhat. Democracy is primarily concerned with the collective leadership of the party committee system. Focusing on the relationship of committee members, the key to promoting democracy is individual. However,

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in concentrating on the unified leadership of the party, centralism deals with the power of the party organization; therefore, centralism is advanced at the organizational, as opposed to the individual, level. Thus, democratic centralism is effectively implemented through strengthening the democratic relationships of individual members of the committee and developing the centralism of the organizational relationships within the party structure. The persistent deficiencies in intraparty democracy have been the direct result of the tendency of actual practice to conflict with these self-evident principles—that is, while centralism should be implemented at the organizational level, it often prevails in the relationships of members of the party’s collective leadership, and as a result, collective party leadership is transformed into the leadership of a single individual.11 Furthermore, China has long emphasized centralism at the expense of democracy, making democracy an empty slogan backed by few concrete actions. Consequently, centralism far exceeds democracy in practical implementation. Moreover, “centralism” is so often used to refer to a single individual as opposed to the structure of the organization that party history has been marred by authoritarianism and the domination of individual agendas in policy formulation. However, we should not, based on the aforementioned observations, jump to the conclusion that democratic elements are altogether absent from the party structure, nor should we assume that the identification of new areas of democratic growth within the party is impossible. In actuality, despite the long-standing tendency toward centralization, party leaders have always possessed a certain degree of independence to express divergent views due to the nature of the party committee system and its principle of collective leadership. It is of particular note that, although officially sanctioned factions or subgroups do not exist within the party, a number of loosely formed elite coalitions, 11 As Deng Xiaoping noted, “The phenomenon of the over-centralization of power occurs when, under the slogan of enhancing the Party’s unitary leadership, all power is centralized—inappropriately and without analysis—in the Party Committee, and very often in the hands of several Secretaries within the Committee. The First Secretary, in particular, has the greatest centralized authority, ultimately determining the outcome of votes. The Party’s unitary leadership has very often been transformed into the leadership of a single person. This problem exists to a greater or lesser degree at different levels of the Party across the country, i.e., power is over-centralized in the hands of one person or a minority of people,” in Selected Works of Deng Xiaoping, vol. 2 (Beijing: Renmin Publishing House, 1994), 328–329.

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holding somewhat-divergent ideological and political tendencies, have emerged within the party organization. These elite interest-based coalitions, often sectarian in nature, constitute a significant threat to the party’s platform and are generally not tolerated by the disciplinary apparatus of the party. However, a number of elite coalitions have been formed on the basis of differing ideological tendencies and policy orientations. Such groups are much more likely to have a beneficial impact and should be differentiated from sectarian factions in examining their role and impact. Rather than threatening the party organization, these groups may offer certain checks and balances in the policy formulation process, particularly once certain democratic mechanisms have been established within the party.12 Moreover, these kinds of ideological and policy-oriented deviations, in contrast with sectarian strife and power struggles, are permissible under the organizational principles of the party. As noted by Liu Shaoqi, intraparty struggles are mainly ideological struggles, generated by diverging and contrasting ideological approaches. Although the ideological differences between comrades may develop into political differences, or, under certain circumstances, escalate into divisions within the Party, these conflicts nonetheless remain fundamentally ideological in nature and content.13

Therefore, not all conflicts between party leaders should be characterized as meaningless power struggles or sectarian conflicts. While no country can, at any time, be entirely free from political conflicts, such conflicts must be differentiated on the basis of their varying natures and characteristics. For instance, within the multiparty system of

12 Elite power groups do not always appear in factionalist forms, such as “cliques” or “small circles,” and so forth. Sharing the same opinions on policies, some groups merely defend certain policy designs at the time of decision making. Considering this factor, some Western academics use the term factions for those groups formed on the basis of common political interests and backgrounds, whereas those sharing different policy orientations are called opinion groups and are distinct from the former. See James R. Townsend, Politics in China (Chinese translation) ( Jiangsu: Renmin Publishing House, 1994), 263. This is a rather valuable distinction. When examining elite power groups in contemporary China, one should be cautious in differentiating the nature of a “faction” from that of an “opinion group.” In many cases, the forging of elite power groups is not simply based upon political interests or policy orientations, but on a complex amalgamation of various elements. Therefore, any analysis of elite power groups in contemporary China must avoid oversimplification. 13 Liu Shaoqi 刘少奇, Liushaoqi xuanji 刘少奇选集 [Selected Works of Liu Shaoqi], vol. 1 (Beijing: Renmin Publishing House, 1981), 179–180.

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modern Western states, ideological struggles between competing parties have effectively been replaced by the formulation of policy for the purpose of gaining votes, and political conflicts between parties have evolved into political games among politicians. Thus, the political elite are not so much concerned with the issue of which policy should be adopted as they are with which will win them the most votes, and rather than constituting an end unto itself, public policy is merely the means to reelection.14 Contrastingly, political conflicts within the CPC, rather than being power struggles among politicians, are heavily influenced by ideology. While several of China’s contemporary elites have attempted to gain or retain power through political maneuvering and manipulations with little concern for actual policy (e.g., Lin Biao and Gao Gang), the majority of conflicts between leaders have resulted from an effort to maintain a certain approach to policy or safeguard a particular ideological standpoint and, thus, should be characterized as ideological or political conflicts, rather than power struggles. Of course, it is inevitable that some political conflicts will also involve individual clashes of power, but these also ultimately relate to policy. Realistically speaking, it is both natural and inevitable that party elites should have varying proclivities when it comes to policy formulation. As Mao Zedong accurately observed,

14 Western scholars, such as Sigmund Neumann and Seymour M. Lipset, draw a distinction between “parties of representation” and “parties of integration.” The former classification is typified by the majority of parties in Western countries, the primary function of which is to secure votes at election time. The Communists, on the other hand, belong to the latter category, which “are concerned with making the world conform to their basic philosophy. They do not see themselves as contestants in a give-and-take game of pressure politics, but as partisans in a mighty struggle between divine or historic truth on one side and fundamental error on the other.” See Seymour M. Lipset, Political Man (Chinese translation) The Commercial Press, 1993), 61. Conversely, the “parties of representation” (i.e., the competitive parties of the West) do not have a fixed political philosophy. They must follow the logic of the election in order to prevail and adopt a middle-of-the-road policy stance. Opportunistic in outlook, they do not possess a permanent view on policies. As American scholar Anthony Downs noted, these political parties are not motivated by a certain truth or ideal, but rather by the desire to win elections. The logic of the two-party competition compels them to remain within the middle range of electoral attitudes, as this is the only way to win elections. See Anthony Downs, An Economic Theory of Democracy (New York: Harper and Row, 1957). In this respect, the Chinese Communist Party is fundamentally different from Western political parties.

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hu wei Excluding the desert, wherever there are crowds, there will be divisions of the left, the middle, and the right; such divisions will persist despite the passage of ten thousand years.15

The existence of elite coalitions may, under certain circumstances, destroy the inner cohesion of the party, but in most instances, the interactions between these groups will be conducive to the integration of a range of varying interests, ultimately becoming a potential point of growth for China’s intraparty democracy. However, problems arise when the atmosphere within the party becomes too rigidly undemocratic, transforming these normal ideological and policy-related divergences into fierce political infighting and struggles for power that can potentially escalate into “battles across party lines” and have dire political consequences as positive components of intraparty democracy become negative or threatening. The party has, for some time now, failed to establish an internal mechanism for resolving these conflicts of ideology and policy perspective, as well as the political struggles to which they lead. In many cases, extreme measures cause fierce clashes, only temporarily halted through a purge of one of the involved factions. Thus, intraparty politics continue in a “zero-sum game” state. It is, therefore, necessary to introduce a regulatory system in order that such conflicts may be contained within a legitimately established framework, and the zero-sum game may be transformed into a win-win competition. Moreover, the adoption of the multicandidate election system will provide a convenient institutionalized channel whereby diverse policy perspectives and divergent interests may be effectively integrated within the party. The implementation of democratic centralism will support the creation of a political atmosphere within the party that is at once free and disciplined, lively and dynamic. At the same time, it will institutionalize the fundamental directive contained in Jiang Zemin’s political report to the party’s Fifteenth National Congress, to further promote democracy, safeguard the democratic rights of Party members, unclog and widen channels for democracy within the Party, and utilize fully the productivity and creativity of the Party.16

15 16

See Renmin ribao 人民日报 [The People’s Daily], April 27, 1968. See Renmin ribao 人民日报 [The People’s Daily], September 22, 1997.

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Democratic elections will lead to the effective integration of diverse interests and policy approaches within the party and the expansion of the party’s policy base. Not only do elections represent an important step toward upholding democracy within the party, they will also effectively alleviate policy-related pressures building outside the party; in this sense, multicandidate elections constitute a possible and necessary alternative to multiparty competition. Given the prerequisite of maintaining the leadership of the CPC, a multiparty system is, without a doubt, absolutely out of the question. Although past experiences in political development indicate that through the acceleration of social pluralization as a result of increased modernization political establishments are forced to confront the mounting pressure to create a multiparty system, there must, it seems, exist an approach whereby this pressure may be alleviated while the ruling party remains in power. Whereas China’s current system of multiparty cooperation under the leadership of the CPC is purposed at easing this pressure, the perfection of the system of intraparty democratic elections and the effective implementation of democratic centralism would, within the existing framework, prove much more efficacious. Taking into account the long-term goal of democratization, China may learn from the experiences of other East Asian countries, adopting a model wherein the predominant role of the ruling party is complemented by the contributions of multiple parties. In this way, the development of intraparty democracy represents a viable alternative to the multiparty system. Through such an approach, the status of the CPC as the ruling party remains unchanged, and the objective demands of an increasingly pluralistic population are met, thus providing a strategic option for maintaining and improving party leadership. It goes without saying that this is a critical and complex matter that is yet to be adequately studied and debated. 4. Creating a Power-Regulating Mechanism with Chinese Characteristics Concrete progress in intraparty democratization will undoubtedly fuel the democratic development of the political process nationwide. This is a result not only of the CPC’s dominant position as the core of China’s political system but also of a logical product of China’s “intra to extra” route of democratization. Because the CPC is the ruling party, democratic progress within the party can be easily incorporated

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into the political structure of the state. The “development of democratic politics within the framework of the current system through exploitation of the resources within the establishment” not only suggests that democracy should be advanced within the party under the principle of democratic centralism, but also, equally important, that the Constitution should be implemented effectively and that the government should operate within the political framework provided by the Constitution, in order that it may truly be said that the country is governed in accordance with the rule of law. However, the governance of the country according to the rule of law presupposes the management of the party and the bureaucracy under the rule of law. As Deng Xiaoping pointed out, The country must have laws, and the Party must have rules and regulations, the most fundamental of which is the Party’s Charter. In order for laws to be effectively implemented nationwide, Party rules and regulations must be observed.17

The democratic election of party leaders in accordance with the party charter is critical to the management of the party and bureaucracy under the rule of law. In order for intraparty democracy to compel the democratic development of national politics and affect the governance of state, party, and officials under the rule of law, it is imperative that the relationship of the party, the people’s congresses, and the government (particularly that of the party’s Central Committee and the NPC) be clarified through the expansion of intraparty democracy, in order that a uniquely Chinese power-regulating mechanism may be effectively established. With regard to the rank and relationship of the various organs of state power as laid out in the Constitution, the system of the People’s Congress holds the highest position of power, for it is this organ of state power that creates and oversees all others, inclusive of the government, the courts, and the procuratorate. However, surpassing the system of state power, from a macrostructural perspective, the CPC leadership outranks all other organs of state power, including the People’s Congress, making the party’s Central Committee the true supreme political authority. In this respect, China’s organs of political power

17

Deng Xiaoping, 147.

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are highly integrated. This high degree of incorporation of political authority in contemporary China’s political power structure constitutes, in many respects, a significant advantage in China’s economic and political development over the incoherent political structures of many developing countries, in which the degenerative state of political authority and numerous resultant hurdles obstruct progress. However, while recognizing the benefits of China’s current political structure, we must also consider the problematic nature of a system that lacks an institutionalized means of restricting power—that is, due to the high degree of concentration of political authority, the fundamental separation of state organs becomes a mere formality.18 In other words, the ultimate authority of the CPC and its individual leaders, overseeing every aspect of the operations of subsidiary power organs, renders the establishment of an authentic system of checks and balances and a mechanism for the restriction of state power almost impossible. Taken together with the lack of a comprehensive democratic apparatus of investigation and regulation within the party, China’s political system has long been characterized by seemingly uncontainable abuses of political power. The escalation of political corruption since China’s reform and opening up has, to some extent, resulted from the failure to establish an effective mechanism of power restriction both within the party and the greater political structure. Experiences in political development clearly lead to the conclusion that power must be restricted, for power unrestricted inevitably produces corruption. China is presently faced with the critical task of developing an effective and practical body of rules and mechanisms

18 For instance, under the current Chinese system, the authority of judicial and law enforcement organs is shared by the Public Security Department under the supervision of the government and the procuratorate and the court under the judicial system. Thus, the police, procuratorate, and court cooperate and balance each other to prevent the abuse of power. However, all three organs fall under the leadership of the corresponding-level party organizations. Within each party committee at every level, there is a deputy secretary or a standing committee member who is specifically responsible for overseeing judicial and legal work. Moreover, special party organs such as the Political and Legal Committee and the Leadership Group on Political and Legal Work oversee the work of these organs. Important judicial and legal decisions (including verdicts on important cases) must first be determined within the party organization and then implemented by the police, the procuratorate, and the court, respectively. Thus, institutionalized checks and balances on the powers of different state organs are weakened or even dissolved.

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for the restriction and oversight of government power. As Comrade Jiang Zemin suggested, Our power is bestowed by the people; all cadres are public servants of the people, who must be supervised by the people and the law. We must further advance reforms, improve the system of legal oversight, and establish a sound mechanism for the restriction of power under the rule of law.19

In this regard, the development of intraparty democracy and the expansion of multicandidate elections constitute an effective means of restricting and monitoring the conduct of party cadres in accordance with public opinion. Furthermore, such an approach is conducive to the establishment of a constructive balance of the powers of the party, the People’s Congress, and the government; the strengthening of external party oversight; and the practical realization of the goal of governance of the state, party, and officials under the rule of law. This is feasible because, despite the subordinate status of all other organs of state power under the absolute authority of the CPC, the former have established their own independent organizational structure, and these possess legitimate authority under the Constitution. Thus, objectively speaking, there exists the possibility of achieving a certain degree of balance in the relationship of contemporary China’s three major political structures (i.e., the party organization, the People’s Congress, and the government), from which could develop an effective system of power oversight and regulation. This regulatory mechanism would differ significantly from the Western model of separation of powers, or trias politica. While not excluding external oversight of the party, it would be established primarily for the purpose of regulating the intraparty interactions of the elite, for the major People’s Congress and government leaders are commonly senior party cadres, differing from leaders within the party establishment only in their specific duties.20 Therefore, a significant cause-and-effect relationship exists See Renmin ribao 人民日报 [The People’s Daily], September 22, 1997. Some explanation is needed in the discussion of the power relationship between state organs and the party organization. Here, the party organization refers to those institutions and mechanisms composed entirely of party leaders and specially engaged in party affairs. These constitute the party organization in the “narrow sense” and should be distinguished from the party organization in the “broad sense,” which includes all leaders of the party, the government, and the military. Therefore, as democracy progresses further within the party, this power regulatory mechanism will play an even greater and more significant role. 19 20

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between intraparty democratic development and the democratization of national politics, and the advancement of intraparty democracy provides the foundation necessary for the establishment of an effective mechanism of oversight and regulation. Recent trends point to a rise in the authority of the People’s Congress, providing the practical possibility of creating the aforementioned regulatory mechanism. Since the founding of the People’s Republic of China, the chairman of the NPC has, in effect, been an honorary position, often filled by highly respected retired leaders. In recent years, however, those who have held this position have increasingly been younger and have possessed a greater degree of power. According to the findings of one report, Although for some time now, appointments to the National People’s Congress were offered as a consolation prize to leaders facing retirement, these positions are now held by high-level officials and possess actual authority. The NPC will undoubtedly become a powerful political organ in the post-Deng Xiaoping era of governance.21

While this analysis cannot be said to be entirely objective, we may, nonetheless, infer from past experience that the trend toward increasingly younger and more empowered NPC leaders will continue. This trend is significant in that it may provide a sound foundation from which to advance a uniquely Chinese model of democratic politics, as well as upon which to base the formation of a system of checks and balances among China’s three principal structures of political power—the party, the NPC, and the government—which may eventually develop to become a systematic set of norms and conventions. There is, however, the future potential for the balance of power between the People’s Congress and the party establishment to become skewed and complicated. In terms of the actual formulation and implementation of policy, the Central Committee of the party and its Politburo hold the highest authority in the hierarchy of state power; however, the Constitution identifies the NPC as the supreme organ of state power. The implicit tension between the two is usually justified in the following manner: the party acts within the framework defined by the Constitution and the law (which are ratified by the NPC), and

21 Huang Yasheng黄亚生, “Jiexi zhongguo bengkuilun de shenhua 解析中国崩溃 轮的神话 [Analyzing the Myth of ‘China Crumbling’),” Zhanlue yu guanli 战略与管理 [Strategy and Management] 1 (1996).

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the Constitution and the laws are drafted and formulated under the party’s supervision (which also encompasses the NPC). Thus, even from a purely theoretical standpoint, there is great potential for tension between the two bodies. However, empirically speaking, while not yet obvious, the regulatory impact of the People’s Congress upon the party organization is trending upward. This trend was exemplified in 1992 in the Fifth Session of the Seventh NPC when, in a vote conducted on the Resolution on the Construction of the Yangtze River Three Gorges Dam Project, 177 representatives voted against the resolution, 644 representatives abstained, 25 did not even submit a vote, and 1,767 voted in favor (i.e., one-third of all representatives opposed the bill).22 At the same session, one candidate for vice-premiership only received 63 percent of all votes. This was repeated in the Third Session of the Eighth NPC in 1995, when another candidate for the same position received an identically low (relative to previous votes) percentage of the vote. Such examples indicate the potential of the People’s Congress to implement practically its regulatory and legitimizing function23 and constitute definitive progress in the development of China’s democratic politics, while smoothing the tension between the People’s Congress and the party organization. Rather than being a powerless state organ, the People’s Congress is, in actuality, one that has not yet fully realized its power. Once implemented, the legal authority of the NPC will be substantial, and constituting an important resource within China’s power structure, should be fully exploited as a fundamental starting point for the development of democratic politics. It must, however, be recognized that the aforementioned improvement of the People’s Congress system and the creation of a unique

22 Ye du 野渡, “Sanxia gongchen biaojue ji 三峡工程表决记 [An Account of the Vote on the Three Gorges Project],” Jizhe guancha 记者观察 [Press Observations] 5 (1992). 23 Local people’s congresses have gone even further in this respect. As early as the 1998 reelection of the local people’s congress and government, representatives in some areas petitioned to recommend candidates for the vice-governorship, and in some large cities, the vice-mayor was chosen through multicandidate elections. Even more strikingly, in 1993 the gubernatorial candidate recommended by the party organization in Guizhou Province failed to be elected; instead, the candidate jointly nominated by the representatives was elected. Similarly, in Zhejiang Province, the only candidate for the governorship failed to win a majority vote; a vice-governor, who was not a candidate, was elected governor by the absolute majority. Both cases were unprecedented in Chinese history and completely unexpected by the party organization. See Outlook (overseas edition) 7 (1993).

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mechanism for the regulation of state power and the balance of power between the party, the government, and the People’s Congress will not be accomplished overnight, but rather will require a process of maturation and the establishment of certain preconditions; above all, the guarantee of intraparty democracy is imperative. Because the highest level positions within the People’s Congress are held by party leaders, including that of head of state, it is impossible to establish an effective system of checks and balances between the party, the government, and the NPC if intraparty democracy is dysfunctional, the collective leadership of the party organization is inadequately implemented, the party committee system becomes ineffectual, or authoritarianism and dictatorship prevail. It must, therefore, be recognized that recent advancements in NPC authority are directly related to the constructive democratic environment taking form within the party under the leadership of Comrade Jiang Zemin and the Central Committee. Thus, it is apparent that the democratization of national politics and the creation of a uniquely Chinese mechanism for the regulation of state power must be compelled by the democratization of the party. At the same time, motivated by intraparty democratic development, the democratization of national politics will have a positive effect on the continued advancement of intraparty democracy. This integration of the democratic development of the party organization and the state system will result in the establishment of a gradual and cyclical route toward democratization, beginning within and spreading outward from the central party organization to local-level party organizations, and developing gradually from the elite to the masses, characterized by constructive interactions between the various organs of power. As pointed out by Comrade Jiang Zemin at the Fifteenth NPC, The more socialism develops the more democracy progresses. We must actively seek to apply practically this principle, advancing a uniquelyChinese model of socialist democratic politics, in order that it will continue to grow and develop in the 21st century.

Key to China’s socialist democratic development is the full utilization and exploitation of the current political resources within the political establishment, as well as the identification and cultivation of potential areas of democratic growth in the fundamental political structure. China’s political advancement depends upon the ability of the party organization to (1) recognize the strategic significance of the development of intraparty democracy to the nation’s continuing peace and

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stability in the twenty-first century, (2) analyze newly encountered challenges and issues with a spirit of innovation, (3) reach consensus on the issue of advancing intraparty democracy in order that it may constitute a significant breakthrough in China’s political development, and (4) implement democratic reforms within the party and integrate those taking place within the greater political structure.

DEMOCRATIZATION OF THE NATIONAL PEOPLE’S CONGRESS AS THE FOCAL POINT FOR THE CONTINUED ADVANCEMENT OF CHINA’S DEMOCRATIC DEVELOPMENT* Pu Xingzu Translated by Kristin Lauria and Li Peichun 1. It Is Imperative That China Continue to Advance Democratic Development Since the inception of the Reform and Opening-Up Policy (改革开放),1 China has made considerable progress toward democratization on multiple levels—theoretical, institutional, operational, and so forth. While these developments are valuable and encouraging, they are also preliminary and elementary. China’s continued promotion of democratic development is necessitated by changing domestic and global conditions, rather than the personal agenda of any one individual. For quite some time, in discussing democracy, people in China have emphasized “domestic conditions,” primarily focusing on those factors that have restricted the development of democracy (e.g., economic and cultural backwardness, the effects of autocratic traditions, etc.). In the author’s opinion, these considerations are critical. We can clearly appreciate that if China’s democratic development is to be successful, it must be gradual and steady, taking into account domestic conditions and avoiding the pitfalls of sudden or rushed change, which will ultimately slow long-term progress. However, this is not to say that China’s democratic development should be delayed or postponed. Rather, certain domestic conditions, particularly those that continue to evolve, necessitate China’s continued advancement toward democracy. Our call for “the development of a democracy consistent with national conditions” requires that we consider both those factors that impede democratic development and those that necessitate democratic

* This chapter was originally published in the fifth volume of the Fudan Journal of Social Sciences, 2005. 1 Launched by Deng Xiaoping in 1978, the Reform and Opening-Up Policy initiated China’s transition from a centrally planned economy to a market-based system.

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advancement. Moreover, in determining the appropriate route for China’s democratic development, we must take into account global conditions, which become increasingly relevant as China continues to open to the world. Here, let us examine in detail several aspects of the current domestic and international climate that compel China’s continued democratic development. First, China has already taken great strides toward becoming a market economy. For more than two decades, China has undergone considerable reforms, resulting in the gradual transition from a centrally planned economy toward a market economy. With this has come the transformation of the state-owned, centrally planned economy into a system in which public ownership remains prominent while allowing for the simultaneous development of various economic sectors. The steady expansion of the private sector and the accompanying growth of free market competition have resulted in the division and clarification of social interests, which have led these interests to be increasingly stratified and complex. This, in turn, has given rise to the gradual awakening of various social entities (individuals as well as groups, the wealthy as well as the disadvantaged) to their own interests and, consequently, to greater demands being placed on the political system as these entities strive to influence public policy. This constitutes the early stages of what is known as “political involvement.” During the initial stage of reform, the principal conflict within Chinese society was that which existed between “people’s growing material and cultural demands and the lagging rate of social production.”2 Hence, the policy of “building the two civilizations” (“material civilization” and “spiritual civilization”) was aimed at alleviating this fundamental contradiction through a program of domestic development. Today, as China continues to develop into a free market economy, there is a growing demand among the Chinese populace that a third “need” be met: the need for political participation. This is an extremely positive development. The need for political participation calls for the establishment of “political civilization”! The need for political participation provides real impetus for democratic development! According to the writer’s observations, the governing party and its administrators Zhongguo gongchandang zhongyangweiyuanhui guanyu dangde ruogan lishi wenti de jueyi 中国共产党中央委员会关于建国以来党的若干历史问题的决议 [Resolution of the Central Committee of the Chinese Communist Party on Certain Questions in the History of the Party since the Founding of the People’s Republic of China] (Beijing: Renmin chubanshe, 1982), 875. 2

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are, in actuality, already aware of this. This was exemplified in the Sixteenth Party Congress’ call for a “gradual expansion of citizens’ political participation.” Here, expansion suggests an adjustment to meet the needs of the people; this expansion is gradual in order to maintain social and political stability. Gradual expansion through the “construction of a socialist political civilization and the development of a socialist democracy” allows for the development of the political apparatus necessary to support increased participation in the political system based on established laws and procedures. Indeed, as Samuel Huntington put forth, To maintain a high level of social uniformity, political participation should be expanded and, at the same time, a more forceful, complicated, and self-independent political system should also be developed.3

Otherwise, in the case that the political system fails to keep pace with societal developments and the resources of the political apparatus prove inadequate to address the needs of the populace, it is highly likely that groups with divergent interests will “participate” unrestrainedly outside of the system, their interests colliding and conflicting. The inevitable outcome is clearly outlined in the following formula: growing political participation / lagging development of the political system = political instability.4 In the author’s view, market economy → division of interests → individual demands → political participation → democratic development is a socioecological chain that logically proceeds from the link between economics and politics. Thus, China, having begun the transition toward a free market economy, has no choice but to continue to promote democratic development. Second, China is presently experiencing a transition in political authority. The People’s Republic of China was founded in 1949 on the principle that “political power grows out of the barrel of a gun.” The long and hard-fought revolution produced such military strategists and revolutionary figures as Mao Zedong. Following the victorious conclusion of the revolution, Mao Zedong became China’s supreme leader, holding absolute power and enjoying the support of the masses.

3 Samuel P. Huntington, Political Order in Changing Societies (Chinese translation) (Beijing: Huaxia chubanshe, 1988), 85. 4 Ibid., 5, 79.

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Based on Max Weber’s in-depth study and classification of authorities,5 we can see that the “charismatic authority” of Mao Zedong was one of the legacies handed down by China’s revolutionary generation to the “post revolution” generation. With the passage of time, the power of the charismatic authority fades and the country transitions away from this model of authority. China is presently undergoing the transition from charismatic authority to “legal authority.” This transformation is not the result of personal agenda but is rather necessitated by the changing landscape of the present era. In the author’s opinion, this transformation is indicative of China’s growing modernization and maturity. The legitimacy of legal authority stems primarily from the operation of the democratic rule of law and the rational choice of the people, rather than a reliance on personality or charisma. Thus, China’s political authorities must increasingly focus their energies on the development of democracy and the rule of law. It is only in this way that China’s authorities will build a firm legal foundation to effectively lead and integrate an increasingly stratified society with increasingly divergent interests. For this reason, the author firmly believes that China’s transformation of political authority must be accompanied by continued democratic development. Third, China cannot isolate itself from the global trend toward democracy. China’s accession to the World Trade Organization is a clear indication of its increasing stature in the world community and its growing role in an increasingly globalized economy. It is self-evident that the economies, political systems, and cultures of the world cannot remain entirely separate; thus, as China continues to open to the world, it will inevitably be influenced by the currents of global democracy. The domestic conditions and democratic models of individual nations are undeniably unique; however, the torrents of democratic development compel the gradual advancement of all nations toward democracy. In doing so, we are simply staying abreast of global trends. As a large and prominent player on the world stage, China simply cannot isolate itself from this global movement toward democracy. Following global trends, China must continue to promote democratic development.

5 Max Weber, Economy and Society (Chinese translation) (Beijing: Shangwu yinshuguan, 1997), 238–282.

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Based on this analysis, it is clear that changing national and global conditions necessitate China’s continued advancement toward democracy. As previously mentioned, some domestic conditions may constitute an impediment to democratic development. In light of potential obstacles, the governing party and officials must, to an even greater degree, consistently strengthen their resolve and hone their abilities to overcome barriers, persisting unremittingly and working unwaveringly to guarantee the continued advancement of Chinese democratic development. As Deng Xiaoping once said, “Development is an absolute necessity!” Economic development has been critical for China; now, democratic development is equally imperative. 2. Simultaneous Democratic Development in Three Areas, Centered on the Democratization of the National People’s Congress Having established the necessity of China’s continued democratic development, we must now consider what course this development shall take. This is a topic that has been widely discussed in academic circles in recent years: where will the critical breakthrough in China’s democratic development occur? In the author’s opinion, China’s continued democratic development derives naturally from the democratic elements already present in three primary areas: first, from the exercising of state power within the apparatus of the National People’s Congress (NPC); second, from the “intraparty democracy” within the ruling party, the Communist Party of China (CPC); and last, from the “social democracy” (社会民主) of groups, such as the Chinese People’s Political Consultative Conference (政协), multiparty cooperatives, and self-governing grassroots groups, which hold no official political power. Thus, we see that democratic development is taking place at three different levels—state, party, and grassroots—with each of significant value. Each of these nascent forms of democracy is distinct and irreplaceable, and yet at the same time, they are intricately linked and, as such, not easily separated. Therefore, the author proposes that democratic development be advanced in all three areas simultaneously so that the progress made in one area may bolster and reinforce advancements in the other two, resulting in a comprehensive and coordinated democratic development. Although at this juncture it would be unwise to focus unduly on any one area of democratic development at the expense of advancement in the other

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two, in seeking a balanced course of development in all three areas, we may still reasonably emphasize that area which will most likely provide the greatest impetus for China’s overall democratic development. But on which of these areas shall we focus? Which of these three shall provide the necessary impetus for China’s overall democratization? Many scholars suggest that we focus on the intraparty democracy of the CPC; numerous others propose that we concentrate on selfgovernment at the village level. Few scholars emphasize democratization of the NPC as the focus for China’s democratic development. As one of these few, the author submits the following exposition of the unconventional view that the NPC ought to be the focal point of China’s democratic development. In theoretical terms, democracy and democratic politics refer to the power of the people, or the power of the majority. We may be inclined here to interpret power in its broadest sense, for example, the power possessed by villagers to administer village affairs (i.e., grassroots democracy) or the power of the constituent members of a political party to manage party affairs (i.e., intraparty democracy, etc.). However, in a world dominated by nation-states, the most authoritative, compelling, and significant power is that of the state. As a result, the terms democracy and democratic politics primarily refer to state power; thus, state power is, in actuality, the power of the people, or the power of the majority. Originating in ancient Greece, the concept of democracy was embodied in and regarded as synonymous with the system of government of the time: the Greek city-state (or polis). Continuing to the present day, the notion that the fundamental nature of democracy or democratic politics is most fully represented in “a form of state” or “a model of state”6 is still prevalent. It is for this reason that, today, in gauging a nation’s level of democratization, we generally first examine that country’s power structure, considering such questions like the following: Are the leaders of said state chosen through a process of democratic election? Is the power structure of the state consistent with democratic principles? Does state power operate in conformity with democratic procedures? Thus, we see that the democratization of state power is, to a great extent, an expression, representation, or symbol of a state’s democratic politics. It is, therefore, difficult to regard intraparty

6 Liening xuanji 列宁选集 [Selected Works of Lenin, vol. 3] (Beijing: Renmin chubanshe, 1974), 257.

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democracy or grassroots democracy as the fundamental measure of a state’s degree of democratization. If we maintain that democratic politics is principally concerned with the democratization of state power, then in choosing among China’s three present sources of democratization, we see that the NPC system alone exercises state power and represents the democracy of state power, which we have already established as the primary form of democracy. In actuality, the NPC is regarded as “China’s fundamental political apparatus.” As the political mechanism through which the Chinese people exercise their democratic power at the state level, it is the most important political apparatus for democracy in China today. In recognizing the need for the primary form of democracy and the principal democratic political apparatus to be the focus of China’s democratic development, we have identified the greatest obstacle to China’s continued advancement, and still, we find our theory remains logically sound. Practically speaking, China must integrate and elevate the interests and demands of the people, voiced through political participation, in the formulation and implementation of policies that address the many complex, new challenges of this current stage of development and transformation. Here, the NPC may play a unique role. Publicly elected, the NPC is China’s only organ of public, state, and legislative power that reflects and integrates the wills and demands of the people. Moreover, when it comes to addressing issues relating to political, economic, civil, and social development at the state and local levels, it is only by way of the NPC’s legislative and administrative authority that policies with the weight of state power may be formulated. Although the party plays a substantial role in the formulation of major public policies, procedurally speaking, all public policy proposals put forth at any level of the party organization must be submitted through appropriate channels to the NPC. It is only after the NPC has deliberated on and voted to adopt a measure that it passes into law and is implemented by the various departments of government. Over the past two decades, the majority of major policies (both laws and resolutions) have been finalized and passed by the NPC. If China is committed to the advancement of democratic development, this final procedural role of the NPC in the passage of major legislation is obviously crucial. The NPC has, additionally, already begun to play a critical role in representing public opinion in the formulation, amendment, and improvement of major policy decisions. Of course, there is still a long

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way to go, and there is an urgent need to strengthen this role. In the constantly evolving China of today, a deficiency in government oversight has already drawn widespread national attention. As stipulated by the Constitution, the NPC holds the highest regulatory authority, representing the people’s interests in monitoring government use of power. Present conditions urgently demand the NPC’s increased oversight. In recent years, the NPC has, in fact, made significant progress in improving government oversight as seen at the national level in increased supervision of government auditing. Considerable progress can be seen at the local level in the exercising of the powers of veto, inquiry, and recall; in the conducting of special investigations; and in the initiation of earnest monitoring of the government, court, and procuratorate—these have achieved considerable results and have had important social effects. However, despite these advancements, there are many areas of the NPC’s oversight that fall short, making it imperative that the NPC continue to strengthen its supervisory role. It is clear, then, that the NPC has accumulated experience in and made progress toward democratization. Thus, it is not only logical for us to focus on the NPC in advancing China’s democratic development but also natural that we utilize the already-established democratic structure of the NPC in promoting China’s democratization. Moreover, if the NPC is to respond effectively to the urgent cry of current conditions and become China’s principal apparatus of democracy, concentrating on the NPC’s democratic development is both necessary and appropriate. It is obvious that the author’s view differs greatly from the prevalent positions that intraparty democracy or grassroots democracy take the lead in China’s democratic development. First, let us discuss the proposal that intraparty democracy be the focus of China’s democratization. This theory is generally founded on two premises: first, the party is the bastion of Chinese democracy, and second, the intraparty democracy of the CPC will give impetus to popular democracy; both of these are self-evident truths. However, the flaw in this argument becomes apparent when we appreciate that the CPC, as the party in power, clearly realizes that a democracy that holds state power is the greatest form of democracy and, in so doing, necessarily takes the democratization of the NPC—the principle form of democracy—as the focus for China’s democratic development. In fact, the CPC has repeatedly emphasized the NPC as China’s most fundamental political system and, as such, China’s most important

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democratic system. Since the Third Plenary Session of the Eleventh Central Committee of the CPC (held December 18 through 22, 1978, in Beijing), the party has frequently emphasized the goal of “developing socialist democracy,” invariably ranking “persistence in improving the system of the People’s Congress” as its top priority. The top priority is also generally the focal point of the agenda. With the NPC as the focal point of China’s democratic development, the CPC will certainly pay greater attention to the leadership of the democratic People’s Congress. Of course, the party has for some time also discussed the issue of intraparty democracy. This issue was discussed in some detail by the Sixteenth Central Committee of the CPC (2002–2007), indicating that the party has increasingly realized that the continued democratic development of the People’s Congress, China’s primary form of democracy, must be accompanied by the continued advancement of intraparty democracy. The internal democracy of the leading party must continue to develop in order to provide effective, forceful leadership in the development of the primary democratic system of the People’s Congress. However, this is not to say that in promoting the intraparty democracy of the CPC, China’s leaders intend for intraparty democracy to supersede the democratization of the People’s Congress as the focal point of China’s democratic development. As the only democratic organ of state power, the People’s Congress is China’s “principal democratic system,” and it is only logical and natural that China’s principal democratic system be the focal point of China’s democratic development. Let us now consider the second premise upon which the argument for intraparty democracy as the focal point of China’s democratization is based: the advancement of intraparty democracy will impel popular democratic development. Here, we must identify several key contradictions. It does not necessarily follow from this statement that intraparty democracy should become the focal point of China’s democratization. In fact, in ensuring the democratization of intraparty politics, we cannot guarantee the simultaneous growth of popular democracy (including the People’s Congress system). Let us instead interpret the statement in this way: because intraparty democracy is in fact the democratic self-government of the leaders of the CPC, it is obviously an important model for China’s democratic development. In this sense, though not the focal point of China’s democratic development, it may still fully support the advancement of popular democracy. An additional factor significant in the argument must also be considered: in certain

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areas of institutional development and practical operation, the partyled democratization of the People’s Congress system has already surpassed the CPC’s intraparty democratization (this is perhaps one of the reasons for recent developments in intraparty democracy). This may be seen in such developments as permanent terms of office, committee deliberation and decision making, elections, and increased representative involvement when congress is not in session. Thus, we see that as the focal point for China’s democratization, the People’s Congress may bolster and promote the intraparty democratization of the CPC. In fact, if we were to base our decision as to which of the three sources of democratic development ought to be the focal point of China’s democratization solely on a discussion of which will impel which, we find, in fact, that any one of the three might easily become the focus of our efforts of democratization. In actuality, any of the three could provide impetus in one form or another to the other two, but if all three are focal points for China’s democratization, then, in actuality, we have no focal point at all. Thus, we find that this particular argument fails to support logically the theory of intraparty democracy as the focus of China’s democratization. Conversely, the People’s Congress system exercises the authority of state democracy, the principal form of democracy, and this reality, in and of itself, sets the People’s Congress system apart as the central focus of China’s democratic development. Next, we shall evaluate the proposal that democratization at the grassroots level, in the form of village self-government, be the focal point for democratic development. This theory is based on the premise that grassroots activism is fundamental to democratic politics. Here, the “fundamental” nature of grassroots activism is absolutely accurate. The author, in fact, corroborates this claim: since democracy is by definition the power of the people to be self-determining, without the full support and involvement of the people, democracy is meaningless. As a form of grassroots democracy, village self-governance provides an invaluable opportunity for the general public to participate in a “training course” on democratic politics, increasing daily their understanding of and support for democracy, and by so doing, creating a solid foundation for the establishment of democratic politics (inclusive of the People’s Congress). The problem lies in the fact that grassroots democracy (as well as other forms of “social democracy”) is not, in and of itself, a foundation for the exercise of democratic state power and, in this respect, does not equal China’s primary and most essential

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form of democracy. It is not, therefore, a suitable focal point for China’s overall democratic development. The development of grassroots democracy will inevitably influence and advance the democratization of the People’s Congress system from the ground up, but this does not justify it as the focal point of China’s democratization. Moreover, as the focal point for China’s democratic development, the People’s Congress system will bolster and promote democratization at the grassroots level. For example, lower level people’s congresses can ensure that the legislation passed at higher levels of the People’s Congress system concerning village self-governance is dutifully enforced at the local level and may oversee and support local governments without interfering inappropriately in grassroots democracy. The author does not favor intraparty democracy or grassroots democracy as the focal point of China’s democratic development but rather is inclined to focus on the democratization of the People’s Congress as the primary source of democratic development. However, as previously outlined, if this is to be successful, the three areas must be simultaneously developed. In identifying a focal point, we are simply ensuring that China’s democratization has the momentum and direction necessary to be effective; it goes without saying that we must persist in our efforts to advance the two additional sources of democratic development—intraparty democracy and grassroots democracy. In summary, in continuing the advancement of China’s democratic development, the author recommends a course whereby the People’s Congress acts as a focal point for the simultaneous development of all three forms of democracy. 3. Creating Conditions Necessary to Concentrate on Promoting the Democratization of the People’s Congress In order to promote the democratic development of the People’s Congress, certain conditions must first be established. Here, the author will briefly present five considerations. First, we need to distinguish between two different kinds of leadership in order to clarify the relationship between the CPC and the people’s congresses. It is universally recognized that modern democracies and political parties are indissolubly linked. According to several political scientists, political parties provide the foundation for democratic

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systems of government7 and hold the strings of modern democratic politics.8 This is especially true of China, where the founding of the party preceded the introduction of democratic politics. The establishment of each of China’s political systems, including the People’s Congress system, was initiated and propelled by the CPC within a particular historical context. Due to domestic and global conditions, the party has guided the NPC from its inception. However, there exist two distinct models of leadership, and herein lies the point to be clarified: in leading the NPC, what model of leadership ought the CPC to employ? Let us first examine the two possible models of leadership: “direct leadership” and “indirect leadership.” Direct leadership generally takes the form of “top down” leadership within a single organization. Characteristics of this model of leadership include the issuing of orders by superiors to subordinates and the use of discipline in ensuring the implementation of instructed policies and practices. The relationship between the party and the People’s Congress, however, is not one of top-down leadership within a single organization. Thus, the party’s leadership of the People’s Congress is not that of direct leadership. The party organs may, through appropriate channels (such as the party representatives within the People’s Congress), submit proposals (concerning policy decisions or the nomination of party cadres) to the People’s Congress in the form of recommendations or suggestions; however, these do not constitute orders or directives. The party organization should disseminate and explain its proposal to the people’s congresses, and if after careful consideration, a majority of People’s Congress representatives approve the measure by vote, the party’s proposal will become a law or resolution of the People’s Congress. In this manner, the party guides the People’s Congress in making correct decisions, not by means of issuing orders, but through dissemination and explanation, and not through mandates, but through cooperative decision making. This may be classified as indirect leadership. If in the name of promoting party leadership the CPC attempts to interfere with, compel, or directly influence the policies of the People’s Congress, this will complicate the relationship between the two governing bodies, and the CPC will be unable to fulfill its role effectively. If, in Roger Hilsman, To Govern America (Chinese translation) (Beijing: Shangwu yinshuguan, 1990), 350. 8 R. Sontheimer, Government and Politics of the Federal Republic of Germany (Chinese translation) (Shanghai: Fudan daxue chubanshe, 1985), 81. 7

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theory, we are truly able to differentiate between the two aforementioned models of leadership, then it is possible that we may, in practice, clarify the relationship between the party and the People’s Congress system. Through improving its model of leadership, the party will continue to guide the people’s congresses while ensuring that the people’s congresses continue to operate independently as stipulated in the Constitution. Second, we need to strengthen the relationship between congressional representatives and their constituents, improving the ability of the people’s congresses to integrate public opinion in policy making. The People’s Congress system is, in essence, a representative democracy, and the greatest danger of a representative democracy is the potential for representatives to diverge from and, ultimately, become cut off from the needs of their constituents, nullifying the people’s sovereignty.9 In order to strengthen the relationship of the people’s congresses and the electorate, we must improve elections. This means that people’s congress representative candidates must (not merely can) meet with voters, appeal to voters, and answer questions so that the voters’ selection of representatives is informed by an understanding of the candidates and their positions. In this way, the voters will trust their elected representatives and feel comfortable communicating their needs and opinions freely. At the same time, representatives must, through various channels, communicate and stay in contact with their constituency in order to receive the input of its members. All representatives, particularly the large number of part-time representatives, must also employ several assistants to aid them in hosting and meeting with constituents. In the author’s understanding, a considerable number of undergraduate and graduate students in the disciplines of political science, law, and the social sciences would gladly and willingly volunteer their time to assist representatives of the people’s congresses in order to contribute to society and take advantage of the opportunity to apply the theories they have studied and gain specialized experience. Representatives must also promptly submit issues of public interest to their respective people’s congress and standing committee for consideration. In a society already comprised of divergent interests, public opinion will inevitably become increasingly diverse and heterogeneous.

9 Jean Jacques Rousseau, The Social Contract (Chinese translation) (Beijing: Shangwu yinshuguan, 1982), 125.

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The people’s congresses and their standing committees, as “factories of public opinion,” should increase the incorporation of public opinion through such measures as improving the caliber of its members and developing procedures for policy discussion. For example, it is necessary to establish a system of speaking at plenary sessions so that we may overcome the limits of deliberation by delegation and, from this foundation, gradually establish a system of debate so that differing voices (including those of minority members of standing committees) may be heard, and through a process of confrontation and consultation, differing ideas may be examined before putting a proposal to a vote. In actuality, as early as 1956, former Chinese premier Zhou Enlai proposed “debate as a part of future plenary sessions.”10 Half a century later, it may be time to add debate to the agenda. Third, we need to enact resolute constitutional oversight and investigate any behavior that violates the democratic functioning of the people’s congresses. Along with China’s present efforts in democratization must come the recognition of the absolute authority of the Constitution. With regard to the question of how we might practically conduct constitutional oversight and ensure that the Constitution is enforced, scholars have, for many years, offered their wisdom on the topic. To this, the author would make one addition: oversight of the democratic operation of the People’s Congress system must be incorporated into the effort to enact constitutional oversight. Since the Constitution defines the People’s Congress system as China’s most fundamental political system, it is natural that implementation of the Constitution should include implementation of its most fundamental political system. Thus, it follows logically that the enactment of constitutional oversight must include oversight of the People’s Congress system. Furthermore, in enacting constitutional oversight, we must prioritize the investigation of constitutional violations. There have been instances of individuals using the name of the party organization to influence, obstruct, or intervene in the official operation of the People’s Congress system as prescribed by the Constitution. Examples of such interferences include preventing representatives of the people’s congresses from conducting lawful investigations, ordering the People’s Congress or its standing committees to approve appointments, or even

10 Zhou Enlai wenxuan 周恩来文选 [Selected Articles of Zhou Enlai] (Beijing: Renmin chubanshe, 1984), 208.

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openly refusing to recognize the outcome of a vote. The matter of how these instances of constitutional infringement should be addressed remains to be established through theoretical analysis and the creation of the necessary institutions of oversight. Fourth, we must encourage each local region to adapt to local conditions in exploring potential opportunities for promoting democratic politics locally. In order to advance the democratic development of the People’s Congress system, we must continue to explore all channels— theoretical, institutional, and functional. Due to the fact that China comprises a vast and diverse territory and that within this territory there exists a broad range of conditions and stages of development, we should encourage all localities to consider local needs and conditions in their democratic explorations and innovations rather than requiring that every area conform to a uniform, nationwide course of development. The author has consistently held that China’s democratization must conform to global, domestic, and local conditions. More than ten years ago, several local governments pioneered the practice of evaluating the work of the local governments, courts, procuratorates, and their leaders. Numerous localities subsequently adopted this program of government assessment, bolstering the ability of the People’s Congress to fulfill its supervisory role. In recent years, a number of representatives of local-level people’s congresses have launched “representative work forums”—dialogical settings in which issues related to the work of the people’s congresses are raised for discussion. Similarly, local people’s congresses have collaborated with the media in order to improve government oversight. These examples demonstrate the value of local experiments in giving impetus to greater democratic developments. Of course, such local explorations and innovations in democratization must not contravene existing laws. Local people’s congresses must ensure that these developments occur in an orderly, lawful manner, and the standing committees of upper level people’s congresses should provide legal oversight as necessary. Should some regions be permitted to overstep legal barriers in conducting local experiments in democratic development? It is the author’s opinion that no region should be permitted to pursue such a course without authorization. However, in future constitutional amendments, a stipulation may be added that endows the NPC with the power to establish, when necessary, “experimental legislation zones” in certain regions to allow for democratic explorations and experimentations that go beyond the boundaries of conventional law, providing a kind of

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legal laboratory in which the People’s Congress might test-run legislation for the purpose of future enactment. Fifth, and finally, in the democratization of the People’s Congress system, we must draw upon the experience of those who have gone before us. As the collective product of humanity’s political evolution, democracy unquestionably contains certain universal elements. At the same time, because democracies emerge within the context of specific nations’ cultural and ethnic realities, they necessarily possess certain particularities. All phenomena of the world, without exception, exist as a combination of universalities and particularities. Because of the universal nature of the concept of democracy, different countries may, in its application, draw lessons from each other’s experiences. As an emerging democracy, China can especially learn from the experiences of established democracies. From what the author can tell, China has, throughout history, absorbed many democratic theories, electoral procedures, and representation methods from the West. China’s current Constitution also contains such insights from Western political theory as the stipulation that prohibits a member of the People’s Congress Standing Committee from concurrently holding two offices within the government, court, or procuratorate. Due to unique domestic conditions, China cannot indiscriminately attempt to reproduce Western political models. Lessons drawn from the experiences of established democracies must first be remolded and adapted to fit China’s domestic needs and conditions. In advancing the democratization of the People’s Congress system and promoting China’s overall democratic development, we must learn from the useful achievements of humanity’s political evolution rather than indiscriminately replicating the models of other countries. We are faced with the problem of accurately distinguishing between those lessons from which we might effectively draw insight and those models that are not appropriate for duplication. Determining between the two is not an easy task. Thus, the author believes it necessary to once more logically and objectively examine the democratic systems of established democracies.

THE ROUTE OF RURAL GOVERNANCE REFORM: STRENGTHENING VILLAGE MANAGEMENT AND STREAMLINING TOWNSHIP AND COUNTY GOVERNANCE* Xu Yong Translated by Kristin Lauria and Li Peichun 1. The Deterioration of Grassroots Administration: An Emerging Issue in Tax Reform The relationship between rural citizens and the state is fundamental to the balance of rural interests. The balance of rural interests at the three levels of rural administration—county, township, and village—is critical to the establishment of effective village governance and the harmonious relationship between rural citizens and the state. Prior to the initiation of tax reform, rural resources and profits were divided among the three tiers of rural governance (i.e., the county, township, and village). As the overarching body of rural governance and the representative of the state in rural affairs, the county oversaw the distribution of rural resources and revenue—including agricultural taxes collected by the central and local governments, as well as local fees and charges—to the lower levels of government. The township, as the next basic administrative entity, was financially independent and, thus, played a significant role in the distribution of rural resources and benefits. Constituting the principal financial resource of the township, the “three deductions” and “five charges” (三提五统)1 were collected and allocated independently by the township. Though collected from each village individually, the three deductions, rather than being distributed within the village, were used directly by the township; this practice was clearly illegal. * This chapter was originally published in Zhanlue yu guanli 战略与管理 [Strategy and Management] 4 (2003). 1 The three deductions refer specifically to public reserve funds, public welfare funds, and administrative fees; the five charges consist of the charges for rural education, family planning, militia training, rural road construction, and subsidies to qualifying groups, which are collected and managed by the township government.

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Before the current tax reforms were undertaken, the distribution of rural interests was generally conducted hierarchically, in accordance with the traditional model of “wealth disposed by power,” or the authority of government in resource allocation. As a result of China’s historical system of centralized rule, private property ownership and local autonomy and rights were nonexistent, and access to resources was determined by position within the power structure: the higher the position of power, the greater the authority in collecting and allocating resources, and the lower the position in the hierarchy, the more limited the authority in wealth distribution. Despite fundamental reforms to the governance structure following the founding of the People’s Republic of China (PRC) in 1949, due to the absence of corresponding changes to the resource distribution system, authorities maintained their positions of power in the distribution of interests. Recognizing the challenges that would arise from the continuance of such practices, as early as the 1950s, Mao Zedong repeatedly advised of the importance of correctly managing the relationship between the nation, the collective, and rural citizens. Following the establishment of the people’s commune system, the central government effectively terminated the practice of yi ping er diao (一平二调), or the indiscriminate transfer of resources by government authorities, replacing it with a three-tiered structure of ownership in which the production team was the basic unit in order to protect the interests of farmers; thus, it was recognized that only when farmers’ interests are protected are resources protected. The distribution structure of the modern era at the county, township, and village levels is an extension of the distribution system of the people’s commune era. However, following the implementation of the Reform and Opening-Up2 Policy, significant reforms to the interest distribution system were implemented nationwide. Local authorities became responsible for local-level finances, and later, a system was established in which local tax revenues were shared between the central and local authorities. The new tax distribution system was intended to inspire local authorities to accumulate capital, but due to regional differences in economic structure, the system was inconsistently implemented across the country. In prosperous commercial and industrial coastal regions

2 Launched by Deng Xiaoping in 1978, the Reform and Opening-Up Policy initiated China’s transition from a centrally planned economy to a market-based system.

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where revenue is amassed from continuously developing nonagricultural sectors, the tax system has boosted the accumulation of capital. For example, the revenues of Guangdong and Shandong nearly doubled during the ninth Five-Year Plan (1996–2000), while those of Jiangsu and Zhejiang doubled and more than doubled, respectively. However, in agricultural regions, where revenue is determined by the limited productivity of agriculture, the tax system has proven less effective, as seen in the revenues of Hubei, Anhui, Henan, and Sichuan during the ninth Five-Year Plan, which increased by 72 percent, 56 percent, 52 percent, and 12 percent, respectively.3 Despite this broad range in regional revenues, the expenditures of various regions have consistently increased: during the ninth Five-Year Plan, the expenditures of Guangdong, Jiangsu, and Zhejiang increased by 78 percent, 70 percent, and 90 percent, respectively, and that of Zhejiang doubled. During this same period, the expenditures of Hubei, Anhui, Henan, and Sichuan increased by 87 percent, 89 percent, 74 percent, and 38 percent, respectively.4 These statistics illustrate that the expenditures of agricultural regions far exceed their revenues, resulting in fiscal imbalances. The limited fiscal resources of these regions are frequently mismanaged by authorities. Whereas in developed regions, lower level administrative units are frequently managed the most effectively, in the central agricultural provinces, the reverse is often true, with local authorities often transferring the burden of financial imbalances to the farmers under the guise of various “charges” and “fees.” This increasing economic burden on the farmers of China’s central and western agricultural provinces has resulted in the growing instability of these regions. In order to promote greater rural stability and prosperity, tax reform was first introduced in the rural provinces of central and western China. The standardization and consolidation of rural taxes was undertaken, under which the three deductions and five charges were replaced by the “two taxes, one surcharge” (i.e., the agricultural tax, the local agricultural tax, and one surcharge) and according to which the total annual taxes paid by rural citizens should not exceed 8 percent of their income. These reforms also included the “one issue, one

3 Guojiatongjiju 国家统计局 [The National Bureau of Statistics], Guojia tongji zhaiyao 国家统计摘要 [National Statistical Brief 2001] China Statistics Publishing House 68. 4 Ibid., 69.

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discussion” policy, according to which public projects and welfare expenditures must be discussed and decided upon on an individual basis, and the total annual cost of such projects must not exceed 15 RMB per person. Rural tax reforms have undoubtedly played a significant role in alleviating the economic burden on farmers and resolving the “three disorders” (i.e., arbitrary charges, assessments, and expenditures). However, these reforms barely scratch the surface of the necessary readjustment of the rural distribution system, for the financial imbalance in rural communities, rather than being improved, has actually gotten worse, and this is likely to result in the resurgence of the economic burden being transferred to farmers. With the implementation of tax reforms, the county government has become the principal tax-collection and revenue-distribution body. While, in theory, this is a logical system, as a result of rapidly growing county-level expenditures, it is common, in the allocation of funds, for county authorities to first cover their own operational expenses. Furthermore, while tax reforms substantially weakened the financial authority of the township, the township government must still meet its operational costs. With decreases in overall country revenue, it is likely that the county government will attempt to reduce its financial support of the township administration as much as possible, forcing the township government to draw upon external financial resources, or even take a loan, to meet its normal operational costs. Tax reform has resulted not only in the weakening of village fiscal authority but also in the weakening of autonomy in the management of village fiscal resources. The salaries of village cadres have been reduced and are now determined by the government. As a result of the one issue—one discussion policy, county and township governments are increasingly reluctant to provide public services to villages. At present, the issue of collecting fees from farmers presents a serious challenge. The limited financial independence of villages will inevitably have a negative impact on the ability of villages to implement the policy of autonomous village governance. Thus, the distribution of fiscal resources between county, township, and village governments is perhaps even less logical as a result of tax reforms, for the taxes collected from farmers do not benefit the farmers themselves. Although the economic burden on farmers has been temporarily alleviated, if the conditions needed for agricultural production continue to worsen, it will become increasingly difficult to

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realize the goal of raising farmers’ income, and this, in turn, will lead to a resurgence in the financial burden of farmers. The present relief of the economic burden on farmers depends upon the administrative pressure of upper echelon authorities. This practice is certainly unsustainable. The aforementioned challenges are the result of fundamental defects in the village governance structure, precipitating an environment in which the financial demands upon farmers are increased while the services provided to them are diminished. Only through reform of the village governance structure can the balance of rural interests be achieved and an environment conducive to economic and social development be established. 2. Strengthening the Fiscal and Administrative Capacity of Villages The village is the fundamental organizational and social unit in the lives and work of China’s farmers. Thus, only through strengthening the fiscal and governmental operations of the village can the basic needs of farmers be guaranteed. In China, the village unit evolved from the agricultural economy. Prior to the Qin and Han dynasties (221 BCE–220 CE), the smallscale rural economy was still developing, and thus, the village unit had not yet been formally established. It was not until the Wei, Jin, and North and South dynasties (220–589 CE) that the “village” appeared in China’s historical record. However, rather than constituting the basic organizational unit of rural life, the village was merely a geographical construct. Not until the Tang dynasty (618–907 CE) was the village formally declared China’s most fundamental organizational unit. Historically speaking, villages have been collectively formed by rural citizens within agricultural societies to satisfy their living and working needs. Because of the vitality of the village as a fundamental component of civil society, it has been adopted by twentieth-century leaders as the foundation for effective rural governance, as seen in Yan Xishan’s promotion of “village rule” in Shanxi and Liang Shuming’s advocacy of the village construction movement. Later, the village became the most basic unit in the national organizational structure, even becoming the basic administrative unit. However, the nature of the village as the collective unit for fulfilling farmers’ basic needs has never changed. This is particularly evident today, as the village is

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increasingly established as the basic unit and most dynamic sector of rural economic development. Following the founding of the PRC and with the establishment of state power and the planned economy, the commune, including the cooperative and the people’s commune, emerged as an important rural organizational unit. However, historically, the commune appeared as early as the Yuan dynasty (1271–1368 CE), when it was employed by state administrative forces in the organization of dispersed village communities.5 The cooperative and people’s commune systems were, to an even greater extent, externally composed and enforced, and while the “village” no longer existed in name, it continued to fulfill a practical function. Established in the early 1960s, the three-tiered ownership system of the commune, within which the production brigade was the basic unit, derived from the practical needs of village communities. The status of the village was greatly elevated within the commune system, under which it gained ownership of community property. After the abolishment of the people’s communes and the establishment of the household production system, the “production brigade” reverted back to the “village.” With the separation of the social and political systems, the village became the organizational owner of the collective property of villagers (i.e., the land). As an administrative unit, the village is the fundamental organizational component of the state power structure. The village committee administers village affairs, and villagers exercise self-governance. Therefore, the village, as the most fundamental economic, political, social, and cultural unit, plays a greater role in the daily lives and work of farmers than ever before. As a result of the commune system, the village has become the principal rural economic innovator since the implementation of the Reform and Opening-Up Policy. Here, it is necessary to clarify the concept of “township enterprises,” for these are primarily village enterprises. Since the separation of China’s economic and political operations, township governments rarely manage enterprises directly, for most are based in the villages by which the land is owned. Thus, numerous rapidly expanding township enterprises are organized by villages, such as those of Huaxi Village, Nanjie Village, Daqiuzhuang, and so forth.

5 Zhao Xiuling 赵秀玲, Zhongguo xiangli zhidu 中国乡里制度 [China’s Township System] (Beijing: Social Sciences Records Publishing House, 1998), 37.

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The ownership of land by villages makes them the most dynamic units in the transformation of the rural economy. Despite the elevated status of the village since the implementation of the Reform and Opening-Up Policy, the financial and administrative authority of the village is still inadequate; this problem is most prominent in agricultural regions. Under the household contract system, farmers became the most fundamental forces of production. However, villages lack the authority to control and distribute resources previously held by the brigades of the commune system. Moreover, under the township finance system established in 1984, townships are entitled to collect administrative taxes from farmers. Villages may only receive derivative benefits from this system. Within the official distribution structure, village interests are neglected for a variety of reasons. In some regions, village finances are managed directly by the township, and the distribution of the limited fiscal resources of the village is at the discretion of the township. As a result of its weak financial structure, the village is unable to function effectively; thus, it is not uncommon for village issues to go unaddressed and unresolved as the result of a lack of fiscal resources. The objective of tax reform was to relieve the financial burden on farmers. However, rather than resolving the financial issues of the villages, the reforms further weakened the villages’ fiscal and administrative authority in a number of ways. First, the county became responsible for collecting taxes and allocating funds, and as a result, the rural financial structure now resembles a funnel, with financial subsidies diminishing as they trickle down from the county to the township to the village. Moreover, decreased financial authority and resources have resulted in the weakening of the administrative capacity of the village, as evinced in the reduced income and contribution of village cadres, who expend the bulk of their time and resources in handling the duties passed down by higher level government cadres at the expense of village matters. Whereas previously, one of the three deductions covered the expenses and salaries of village carders, thus making the effective management of village affairs mandatory, after the implementation of tax reforms, the remuneration of cadres has been determined by governmental departments. Furthermore, the tax reforms eliminated a number of township and village expenses, such as collective production costs. Public projects and village affairs are now managed on a case-by-case basis. While the one issue—one decision policy has been touted as effectively restricting the fees and charges

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illegally collected from farmers and promoting democratic decision making, it has also had a detrimental impact on villages in two respects: first, county governments are reluctant to take responsibility for village projects and affairs, and second, farmers are reticent to finance such projects on an individual basis having already paid the required taxes to the local government whose responsibility, they feel, is to undertake such projects. The most immediate effect of this policy is the fiscal inability of the village committee to manage village affairs. As a result, the capacity of the villages to implement the policy of autonomous governance has been significantly reduced, and self-governance has become “democracy void of true content,” for village affairs are neither managed nor decided upon democratically. Thus, we must further consider the goal of tax reform, which was not merely the relief of farmers’ financial burdens, but, ultimately, the advancement of economic and social development in China’s rural communities. For if following the tax reforms, the fiscal authority of the villages is greatly reduced, villages are unable to provide acceptable living and working conditions for farmers, and farmers’ incomes are not increased, then we must seriously question the efficacy of the tax reforms. Therefore, as “a project for the people,” tax reform should truly embody the public fiscal principle of “from the people and for the people” (i.e., agricultural taxes collected from farmers must be used to improve the lives and working conditions of farmers). Why, we must ask, has the current tax reform project weakened rather than strengthened the fiscal authority of the village and harmed rather than benefited the people? The answer is found in the fact that the principle of “from the people and for the people” conflicts fundamentally with the traditional governance structure of state-controlled finance, which is reflected in the distribution of profits among the county, township, and village according to status within the power hierarchy. However, clearly, the problems resulting from the tax reforms cannot merely be attributed to an unwillingness of county and township governments to utilize tax revenues within the village. Rather, we find that the current expenditures of county and township authorities exceed revenues, making the “funnel” model of resource distribution inevitable. Therefore, in order to strengthen the fiscal and administrative authority of the villages for the purpose of promoting economic and social development in rural areas, the rural governance system must be reformed and the model of distribution restructured.

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3. Simplifying Township Governance: Restructuring Township Authority as a Representative Office The structure of resource distribution among the counties, townships, and villages is, to a large extent, an outgrowth of the rural administrative structure established after China’s reform and opening-up, which, despite the inadequacy of rural fiscal resources, requires that they be distributed among the levels of rural organization. Throughout China’s long history, the township, while holding administrative and even grassroots state authority, has never held independent financial authority. The financial authority of the township was not established until the abolition of the people’s commune system. In the 1983 Edict Concerning Separation of Social and Political Systems and the Establishment of Township Governments, issued jointly by the Central Committee of the Communist Party of China (CPC) and the State Council, it is stated that along with the establishment of township governments, township finances, budgets, and accounts shall be created to clarify the sources of income and scope of expenditures of the township.

In 1985, the Ministry of Finance issued the Temporary Regulation on the Financial Management of the Township in accordance with the policies of the central government, stipulating that the township bureau of finance should operate based on the principle of unified leadership and graded management and that the revenue and expenditures of the township should be comprised of capital obtained from the state budget, external funds, and self-raised finances. However, since the establishment of independent township finance, limited surpluses in agricultural production have failed to adequately meet the demands of township expenditures in rural regions for the following reasons: First, the administrative expenditures of the township, as the grassroots unit of state power, have continued to rise rapidly. Throughout China’s history, the governance structure has combined the vertical rule from central to county government and the self-rule of the township and village; this structure has long persisted in order to minimize structural bureaucracy and reduce governmental expenditures. Even during the era of the people’s communes, when the political and social systems were integrated, the township was fundamentally an administrative organ established to satisfy the demands of agricultural

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production below the county level, as opposed to a complete organ of state power. Since the elimination of the people’s commune system, the township has become the most basic level of state power, possessing a relatively complete structure; the township itself exercises state power through a horizontal structure of administration. Under China’s integrated structure of unified leadership, this implies that the township government should establish departments and structures of governance parallel to those at higher levels of government, regardless of whether or not these meet the needs of the rural communities or correspond with the goals and purposes of those at the state level. It was once said that local-level organs constituted “a single needle beneath a thousand threads”; however, the current model may be more accurately described as consisting of “a thousand threads overlying another thousand threads.” As the basic unit of state power, the township should mirror the system of which it is a part, in order that higher institutions are rooted in corresponding institutions at the township level. At present, the township government is comprised of the township-level party committee, people’s congress, people’s government, and the liaison team for the Chinese People’s Political Consultative Conference (CPPCC), constituting the “four major organs” of government. In order to reflect the county system, the township government also includes a disciplinary commission and a military department. Together, these comprise the “six major organs” of township government. The total number of township cadres commonly exceeds fifteen. The internal structure and departments of the six major organs also reflect that of upper level governments (e.g., the departments of organization, publicity, and united front within the township party committee). Additionally, each county department establishes branches at the township level. The result has been the rapid expansion of the township government based on the original system of the people’s commune. Furthermore, as the fundamental unit of state governance, the township oversees the cultural, educational, social, and healthrelated affairs within its administrative region, all of which were previously handled by nongovernmental organizations. The expansion of the institutions, personnel, administrative operations, and social functions of the township government has resulted in the rapid growth of township expenditures. Second, the correlation between governmental achievement and fiscal resources is increasingly acute. The establishment of administrative, and particularly financial, organs at the township level was for the

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purpose of motivating productivity at the grassroots level. In certain regions, especially the coastal “boomtowns,” this system has, indeed, had a significant impact. The Ministry of Finance’s Provisional Regulations on the Financial Management of the Township stipulates the principles of “dividing net capital” and “sharing surplus revenue” in order to mobilize grassroots units to accumulate capital and improve government performance. This is a powerful motivator for township officials to attract investment to their districts. Incited by the rapid modernization of the coastal regions, the central rural provinces confront even greater pressures to develop economically; economic growth has, in fact, become the predominant benchmark by which government performance is measured. However, the coastal model of attracting investment to advance industrial and commercial development cannot be replicated by the central agricultural provinces. Nonetheless, under the current system, the performance of the rural township governments is also gauged in terms of economic growth. Thus, many townships advance impractical “political achievement projects,” which do little for rural development and exceed local financial capacity.6 Rather than drawing upon external capital, these projects are often financed with funds raised from villagers. Such impractical projects include the plan to universalize mandatory nine-year education and the goal of creating an enterprise in every village. The current system is conducive to such projects in that each township is required, to a certain extent, to raise its own funds. Thus, despite the central government’s prohibition against arbitrary collection of funds from rural residents, the township must raise funds one way or another. This is the principal reason for the repeated violation of the regulation concerning the collection of funds from farmers. Third, the operations, responsibilities, and functions of the county and township governments lack coordination and balance. Governments at each level must possess corresponding administrative and financial authority. Throughout Chinese history, imperial power has reached as far as, but no further than, the county level, with the county government constituting the most basic financial unit. Under this small-scale agricultural system, government operations were uncomplicated, and production surpluses were limited. Although following the abolition of the people’s commune system administrative and financial

6

These projects are often designed by local cadres to impress their superiors.

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systems were established at the township level, the structure of the majority of rural communities changed very little. Today, the preponderance of China’s agricultural production is carried out by individual households. Thus, within agricultural communities, the administrative functions and financial resources of township governments are limited. Although the township constitutes the most basic level of government, its principal function is the implementation of the policies of higher level government organs, and its finances are managed by the county government. The township is, in actuality, the first-tier “executer”; in its structural relationship to the county, the township has major responsibilities, limited authority, and minor functional capacity. The major responsibility of the township is the performance of the tasks prescribed by higher levels of government (as many as two hundred annually), its authority is limited in that it must fully and unconditionally implement the policies formulated by the upper echelons of government, and the financial resources of the township government are controlled by the county. Thus, the financial authority of the township is inferior to its administrative responsibilities, and in some cases, the township government must raise capital independently to fulfill designated responsibilities. This inevitably results in arbitrary charges and fines—for example, family planning policies are often implemented with the resources collected from family planning fines, and fines imposed on villagers for disturbing public security often finance public security programs. The ultimate recipient of these arbitrary charges and fines are the farmers, and this has led to increasing alienation and tension in the relationship between rural residents and the state. Rural tax reform was, to a great extent, conducted to regulate tax collection and resolve the problem of arbitrary charges, assessment, and fines. However, a single tax reform program will not alleviate the financial burden placed upon the township, given the extent to which expenditures exceed revenue, nor prevent the growing financial burden on farmers. In order to achieve these goals, the current structure of the township must be reformed and simplified, and the township government must be transformed from a governmental to a representative organ. The simplification of the township governance structure first requires the transformation of the township system from a basic unit of state power to an administrative subagency of the organs of county government, the structural equivalent of an urban neighborhood committee under the municipal government. Under the new system, the township

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would not be required to establish departments paralleling those at the county level, since it would no longer constitute the first level of state government. The institutional and personnel structures of the new township system should be limited in size, broad in scope, and highly efficient. The director of the township representative agency should be appointed by the county government. While a deputy director would be unnecessary, an assistant or supplementary staff member could be employed as necessary. The leadership of the township representative agency would be comprised of administrative and party personnel. The local party committee secretary would be appointed as the director of the representative township office, and the deputy secretary of the party committee would handle party affairs. As a grassroots administrative organ that primarily implements county decisions, the township would not be required to establish a people’s congress or political consultative organs. These functions would be conducted by corresponding county-level organs. The next step in simplifying the structure of township government would be to reduce its functions. So long as organs exist under the old system, it will be difficult to decrease their functions. Under the new system, however, the functions of the township would not simply change but unnecessary functions would be eliminated. As an administrative organ of the county government, the township would be primarily responsible for fulfilling tasks assigned by the county government, guiding the work of village committees, and coordinating the relationships of villages. The simplification of the township structure would require the elimination of township financial organs. The township’s budget is currently managed by the county government. As a result of the tax reforms, the county is now responsible for the collection and allocation of funds; the township financial organs are, thus, unnecessary, and the township should not collect fees directly from farmers. The county should regulate the number of township agency employees through its finances, with one township administrative employee hired per every two thousand rural residents. The township structure must be simplified as a result of its limited administrative and financial authority. The goal is not to eliminate the township administration but rather to streamline its functions in order that they may correspond more completely with the needs of the times. This will allow the township administration to focus on the most critical issues, such as implementing party and government policies,

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coordinating and guiding the economic and social development of the township, managing routine administrative affairs, implementing the family planning policy, and maintaining social security. Beyond implementing party and government policy, the township would be charged with advancing social and economic development at the grassroots level. Only through reforming the institutional structure of the township will its functions be simplified and its limited administrative resources expended where they are most needed. The simplification of township governance will not simply remove the financial authority of the township but, rather, will allow the limited financial resources of the township to be better applied in supporting its limited administrative operations. The reason for this is apparent. The potential to increase rural revenue is limited, and limited fiscal resources cannot indefinitely support unlimited government; unlimited government will ultimately lead to financial crisis. The majority of townships are currently facing serious budget deficits, and as a result of tax reforms, the financial resources of the township are increasingly limited; thus, it is necessary to utilize limited township finances to effectively carry out limited administrative tasks. Of course, even a limited administration will require financial resources. Following the tax reforms, new limitations were placed on the financial resources of the township, placing it at a disadvantage within the distribution structure of the county, township, and village. If the township were to become an administrative organ of the county under the current system, the raised status of the county would further weaken the administrative and financial capacity of the township government. Therefore, in simplifying the township structure, the county administration must also be reformed. 4. Simplifying County Governance: Streamlining the Institutional Structure and Establishing Government Accountability The county has historically held a prominent position within China’s system of governance, and its substantial role continues today. The county, throughout Chinese history, has remained the most stable of administrative units as the most basic level of state power. Although, during the twentieth century, the administrative structure has extended beyond the county to the township level, the administrative organs of the township, unlike those of the county, were never

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comprehensively established—that is, the county was the most basic full-functioning unit of governance in terms of its decision-making, administrative, judicial, and financial functions. For instance, the Chinese Constitution stipulates that only at the county level and above shall people’s congress standing committees be established. The county is the administrative region of the state most closely connected to the general public. The county official, while occupying the lowest position in the administrative hierarchy, still maintains significant authority as a regional official. Because county officials are located at the grassroots level of the monitoring mechanism, they are often referred to as county magistrates. With the modernization and downward-trending redistribution of state power of the twentieth century, the unlimited growth of county authority has resulted in overexpansion and redundancy. The power of the county, the lowest local authority of the country, has expanded with the growth of the government. Until the twentieth century, few county magistrates were appointed by the central authorities, and the county government exercised the full range of governmental powers, including administrative and judicial powers. During the first half of the twentieth century, the county, as an autonomous regional unit, began to expand. After the 1950s, with China’s establishment of a centralized government and planned economy, the expansion of the functions and authority of the state further accelerated the growth of the county government. During the 1980s, the separation of the communes from the government resulted in dramatic structural changes to the government bodies above and below the county; the county structure, however, remained relatively unchanged—that is, institutions established under the planned economy persisted while new institutions sprang up rapidly following the implementation of the Reform and Opening-Up Policy. County institutions expanded to an unprecedented degree during the 1990s, becoming self-contained “super governments.” Hubei Province’s Yingshan County exemplifies this trend. A small mountainous county with a population of four hundred thousand, Yingshan grossed 90 million RMB in revenue during 1998. The twentieth century has seen the unparalleled growth of the county government, and this growth has been accelerated since the founding of the PRC. In 1949, county governments had a total of nine institutional organs; by 1976, the number had increased to thirty-two; in 1980, 1984, 1988, and 2001, the number of institutional organs per county government totaled forty-one, fifty-two, sixty-three, and seventy-one, respectively. Also during the

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twentieth century, more than ten county-level agricultural organizations have been established (see Table 7.1). The expansion of county-level organizations has merely contributed to the complication of its operation. In addition to efficiency not having improved, conflicts between institutions have increased. Increased governmental expenditures have transformed an excessive government into a tyrannical government. While the functions and institutions of county government have expanded, its financial resources remain limited. In agricultural counties such as Yingshan, agricultural taxes comprise the primary source of financial revenue. With soaring administrative expenditures and massive institutional operations, county governments are increasingly likely to transfer the financial burden to farmers. In 2000, the Farmers’ Daily reported that, on numerous occasions, Yingshan County arbitrarily increased the charges, assessments, and fees collected from farmers, resulting in vehement complaints. At the same time, the current county system supports the arbitrary increase of financial burdens on farmers. The integration of rights and responsibilities is fundamental to effective government. During China’s imperial era, the county magistrate was appointed by and accountable to the central government. Within this system, rights and responsibilities were clearly defined. In order to prevent the abuse of power in the pursuit of personal gains, county officials were assigned to posts in regions some distance from their hometowns. Due to the increasing power of the county government, the local autonomy system was established in the early twentieth century in order to expand the responsibilities of the county organs of governance. However, the system was never fully implemented, and as the authority of the county grew during the twentieth century, the responsibilities of the county remained relatively constant. As the link between the state and the local community, the county has exploited national policies and local interests to extend its authority to the extent that neither the central government nor the general public can contain its power. The result has been a severe imbalance in the power and responsibility of county organs of governance. Based on the principles of reciprocity and correlation, the governmental structure of the county should reflect that of the higher levels of government; however, certain government departments that have been eliminated from the upper echelons of government still exist at the county level despite the fact that they no longer serve a purpose in grassroots communities. The sole purpose of such departments is their ability to use governmental authority

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to collect charges and assessments. The imbalance between the authority and responsibility of county government may be further utilized to consolidate county power, expand county government institutions, extend political achievements, and obtain financial resources. In rural communities with limited financial resources, the arbitrary raising of funds through fees and charges is conducted by the governments at the county—rather than the township or village—level. With regard to official corruption, county leaders, particularly the highest ranking officials at the county level, are most likely to engage in corrupt practices. This is primarily the result of the unchecked power of the county government and the inadequate oversight of the county government. While the rural tax reform regulates tax collection, it may also lead to greater distortion in the distribution of interests between the county, township, and village, with the county gaining even greater predominance because of the need to maintain its massive institutional structure and administrative expenditures. While the recent tax reforms have increased the financial powers of the county, its responsibilities have remained unchanged. With such institutional imbalances, it is increasingly difficult to guarantee that the limited financial resources of the county will be distributed logically, for these resources may be used to pay official salaries rather than to benefit the people. Thus, the taxes collected from farmers are not necessarily used to improve their living and working conditions. As a result, the efficacy of the tax reforms is diminished, and the administrative and financial functions of the grassroots units are further weakened. Thus, it is apparent that in addition to tax reforms and the simplification of township government, the reform of the county government is necessary. County government reform must aim to reduce the size of government institutions and transform excessive government into simple and effective government. China’s county administrations have become the bottleneck of institutional reform nationwide and, thus, are badly in need of reform. The restructuring and reform of county institutions should be conducted in accordance with the demands of the socialist market economy; though limited in scope, their personnel should be highly trained and their operations efficient and effective. The institutional structure of rural counties should emphasize essential areas of public management and services rather than establish an institutional structure that mirrors that of higher levels of government. The county

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government need not include the macroeconomic departments necessary at the provincial and central government levels. Cultural institutions should be established based on a comprehensive model. The governmental departments responsible for areas related to culture, sports, radio, and television should be consolidated into one single institution. Agricultural and rural departments of government should also be combined. In this way, the number of county departments could remain below twenty, and the number of administrative personnel could also be reduced. In addition to simplifying the structure of county governments, reforms at the county level must aim to establish responsible government, prevent tyrannical government, and establish good governance practices. The principle of balancing rights and responsibilities should be applied in the formulation and establishment of the new county administrative mechanism. As the principal decision-making unit in the region, the county government must not only be accountable to higher levels of government but also be accountable to its constituency. In order to increase the people’s trust in county-level party and governmental institutions, public support should be strengthened and oversight of the county government should be improved. County reforms should start with the reform of the county CPC congress and its standing committee. The party congress should elect a permanent representative to be responsible for all the party members. This permanent representative should supervise the county’s standing committee and its members and participate in the committee’s decisionmaking activities. When appropriate conditions have been established, the direct election of the leaders of the county standing committee of the CPC may be conducted. Meanwhile, the number of offices within the standing committee of the county people’s congress should be greatly reduced. The county people’s congress should establish a core group of permanent members who are directly accountable to the voters by whom they are elected. Eventually, the top leaders of the county government may be elected directly by voters. The aim of the institutional reform of the county government must be to garner the trust of the people and establish the county government as a responsible first-tier system of government. Through strengthening public support for party institutions and the People’s Congress, the policy formulation and institutional structure of the county-level party and people’s congress will fully reflect public opinion, and administrative operations will be able to be effectively monitored.

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Ultimately, the county should become the basic unit of local autonomy under the leadership of the central government. The central authorities should control the county through party organs, as well as through judicial and financial operations. The county should exercise limited autonomy and be accountable to local residents. Only in this way can a logical balance of rights and interests be institutionally achieved (in order that the taxes collected from the public may benefit the public) and a modern financial and administrative system be established. Table 7.1. Growth of County-Level Institutional Organs Year

Institutional Organs

Quantity

1949

Secretary, Police Bureau, Justice Bureau, Civil Affairs Bureau, Post and Telecommunications Bureau, Financial and Grain Bureau, Tax Bureau, Industrial and Commercial Bureau, Education Bureau

9

1976

Executive Office, Police Bureau, Civil Affairs Bureau, Health Bureau, Office for the Education of Youth, Planning Commission, Goods and Materials Bureau, Industry and Communications Office, Industrial Bureau, Infrastructure Construction Bureau, Light Industry Bureau, Traffic Bureau, Post and Telecommunications Bureau, Enterprises Bureau, Agricultural Office, Agricultural Bureau, Forestry Bureau, Hydropower Bureau, Agricultural Machinery Bureau, Meteorological Bureau, Financial Office, Financial Bureau, Grain Bureau, Commercial Bureau, Industrial and Commercial Bureau, Supply and Marketing Cooperative, Foreign Trade Bureau, People’s Bank, Office for the Construction Bank, Office for Culture and Health, Culture and Education Bureau, Sports Committee

32

Growth Rate

255.6%

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Table 7.1 (cont.) Year

Institutional Organs

Quantity

Growth Rate

1980

Executive Office, Police Bureau, Justice Bureau, Civil Affairs Bureau, Personnel Bureau, Labor Bureau, Office for the Education of Youth, Planning Commission, Statistics Bureau, Commodity Price Bureau, Goods and Materials Bureau, Industry and Communications Office, Industrial Bureau, Light Industry Bureau, Infrastructure Construction Bureau, Traffic Bureau, Post and Telecommunications Bureau, Enterprises Bureau, Agricultural Office, Agricultural Bureau, Animal Husbandry Bureau, Forestry Bureau, Aquatics Bureau, Hydropower Bureau, Agricultural Machinery Bureau, Meteorological Bureau, Financial Office, Financial Bureau, Grain Bureau, Commercial Bureau, Supply and Marketing Cooperative, Industrial and Commercial Bureau, Foreign Trade Bureau, People’s Bank, Agricultural Bank, Office for the Construction Bank, Culture and Education Bureau, Health Bureau, Family Planning Office, Sports Commission, Science Commission

41

28.1%

1984

Executive Office, Police Bureau, Justice Bureau, Civil Affairs Bureau, Labor and Personnel Bureau, Office for the Education of Youth, Auditing Bureau, Land Management Bureau, Archive Bureau, Overseas Chinese Affairs Office, County Annals Office, Planning Commission, Statistics Bureau, Commodity Price Bureau, Goods and Materials Company, Economic Commission, Industrial Bureau, Light Industry and Textile Bureau, Urban Construction Bureau, Traffic Bureau, Post and

52

26.8%

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Table 7.1 (cont.) Year

Institutional Organs

Quantity

Growth Rate

63

21.2%

Telecommunications Bureau, Enterprises Bureau, Building Materials Company, Agricultural Commission, Regional Planning Office, Agriculture and Animal Husbandry Bureau, Forestry Bureau, Aquatics Company, Hydropower Bureau, Agricultural Machinery Company, Meteorological Station, Financial Office, Financial Bureau, Tax Bureau, Grain Bureau, Commercial Bureau, Supply and Marketing Cooperative, Industrial and Commercial Bureau, Economy and Trade Bureau, People’s Bank, Industrial and Commercial Bank, Agricultural Bank, Construction Bank, Insurance Company, Tobacco Bureau, Culture Bureau, Education Bureau, Health Bureau, Radio and Television Station, Family Planning Office, Sports Commission, Science Commission 1988

Executive Office, Police Bureau, Justice Bureau, Supervision Bureau, Civil Affairs Bureau, Labor and Personnel Bureau, Auditing Bureau, Land Management Bureau, Archive Bureau, Office of Personnel Committee, Office in Wuhan, Office in Nanjing, Office in Haikou, Overseas Chinese Affairs Office, County Annals Office, Mountainous Areas Office, Planning Commission, Economic Coordination Office, Statistics Bureau, Commodity Price Bureau, Goods and Materials Company, Economic Commission, Industrial Bureau, Textile Bureau, Urban Construction Bureau, Traffic Bureau, Post and Telecommunications Bureau, Enterprises Bureau, Building

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Table 7.1 (cont.) Year

Institutional Organs

Quantity

Growth Rate

71

12%

Materials Company, Metrology Bureau, Agricultural Commission, Regional Planning Office, Agricultural Bureau, Forestry Bureau, Aquatics Bureau, Hydropower Bureau, Animal Husbandry Bureau, Agricultural Machinery Bureau, Meteorological Bureau, Financial Office, Food and Feed Bureau, Financial Bureau, Tax Bureau, Grain Bureau, Commercial Bureau, Supply and Marketing Cooperative, Industrial and Commercial Bureau, Economy and Trade Bureau, Silk Company, People’s Bank, Industrial and Commercial Bank, Agricultural Bank, Construction Bank, Insurance Company, Tobacco Bureau, Culture Bureau, Education Bureau, Health Bureau, Radio and Television Bureau, Family Planning Office, Sports Commission, Science Commission, Section Chief and Cadre Bureau 2001

County Chief Office, Executive Office, Police Bureau, Justice Bureau, Supervision Bureau, Civil Affairs Bureau, Planning Bureau, Labor Bureau, Personnel Bureau, Auditing Bureau, Land Management Bureau, Taiwan Affairs Office, Retired Cadre Bureau, Archive Bureau, Office of Personnel Committee, Office in Wuhan, Office in Beijing, Office in Shanghai, Office in Nanjing, Development Zone Office, Regional Planning Office, Overseas Chinese Affairs Office, County Annals Office, Party History Office, Poverty Alleviation Office, Planning Commission, Statistics Bureau,

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Table 7.1 (cont.) Year

Institutional Organs Commodity Price Bureau, Goods and Materials Bureau, Economic Commission, Industrial Bureau, Light Industry Bureau, Construction Commission, Foreign Trade Bureau, Traffic Bureau, Post and Telecommunications Bureau, Enterprises Bureau, Building Materials Company, Agricultural Office, Letter and Appeals Office, Agricultural Bureau, Forestry Bureau, Aquatics Bureau, Water Conservancy Bureau, Animal Husbandry Bureau, Agricultural Machinery Bureau, Financial Office, Financial Bureau, Tax Bureau, Grain Bureau, Industrial and Commercial Bureau, Economy and Trade Bureau, Economic Management Bureau, Commercial Bureau, Tourism Bureau, Environmental Protection Bureau, Silk Company, County Organization, People’s Bank, Industrial and Commercial Bank, Agricultural Bank, Construction Bank, Insurance Company, Tobacco Bureau, Culture Bureau, Education Commission, Health Bureau, Broadcasting Bureau, Family Planning Office, Sports Commission, Science and Technology Bureau

Quantity

Growth Rate

A SURVEY OF CHINA’S LEGISLATIVE WORK TO ESTABLISH VILLAGE AUTONOMY* Bai Gang Translated by Kristin Lauria and Lydia Gore-Jones 1. Introduction Initiated after the implementation of the Reform and Opening-Up Policy, autonomous village rule is a relatively new phenomenon in China. Beginning in the late 1970s, early rural reforms focused primarily on the restructuring of the household contract system (家庭联产承包任制). These changes greatly emancipated rural productivity and impelled the development of agricultural communities. The increasing social awareness of villagers led to the collapse of the production brigade (生产队) system, which, in turn, resulted in an emerging power vacuum at the most fundamental level of village government; under these conditions, basic services (e.g., social security, public affairs, and social welfare) went unmanaged. The disintegration of the old system necessitated the establishment of a new, fundamental power structure. Toward the end of 1980, villagers from Luocheng and Yishan counties (in the He Chi region of Guangxi Province) spontaneously instituted village committees, a new form of local-level governance to replace the already-deteriorating system of production brigades. The village committee was initially intended to support the local government in maintaining social order and only later assumed the management of the fundamental social, political, economic, and cultural affairs of the village community. While these early village committees gradually continued to evolve into organizations of village self-governance, similar

* The original version of this chapter was published in Chinese Social Sciences 3 (1998). Publisher’s note: This article was originally published in Chinese during the late 1990s in the primary journal of the Chinese Academy of Social Sciences and is included to give the reader further context for recent discussions on democratization in China at the village level. The reader is invited to compare the author’s recommendations with actual developments in village-level democratization during the last decade.

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grassroots organizations began to emerge in other rural areas throughout China (e.g., in the Sichuan and Hebei provinces). By the end of 1992, autonomous governing bodies had cropped up across the country, constituting a widespread trend in China’s rural communities. Following an examination of the experiences of rural communities nationwide, the legal status of the village committee was ratified by the Fifth Session of the Fifth National People’s Congress (NPC) in Clause 111 of the 1982 Constitution. The village committee was declared the fundamental grassroots organization of village self-rule, with the committee chair, vice-chair, and representatives directly elected by the villagers. The 1982 Constitution also regulates the legal relationship between the village committee and the local government. According to constitutional stipulations, village committee departments oversee issues relating to mediation, public security, and public health and are responsible for the public affairs and social welfare within a designated local area. Additional functions of the village committee include reconciling disputes between citizens; assisting in the enforcement of law and order; and forwarding villagers’ opinions, requests, and suggestions to the local government. This constitutional clause is significant in that it provided the legal basis for village self-rule. In October 1983, the Central Committee of the Communist Party of China (CPC) and the State Council jointly issued the Notice on the Separation of the Commune and the Government and the Establishment of Township Governments (关于实行政社分开建立乡政府 的通知), officially terminating the people’s commune system and preparing the way for the establishment of village committees throughout the country. The legislative work on village autonomy was begun on November 24, 1984, with the adoption by the Twenty-third Session of the Standing Committee of the NPC of the Organic Law of the People’s Republic of China on Village Committees (Provisional), the very purpose of which was to promote village self-rule. Subsequent to the passage of this law, individual provinces, municipalities, and autonomous regions developed their own “implementation measures” based upon and supplementary to the organic law.1 In the early stages of autonomous village

1 See Wang Zhenyao et al., 王振耀等著, Zhongguo nongcun cunminweiyuanhui de zizhizhidu 中国农村村民委员会的自治制度 [The Legal System of the Village Committee in Rural China] (Beijing: China Society Publishing House, 1996), 11–16.

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governance, the organic law and the local implementation measures were relatively effective. However, through the nationwide growth and practical implementation of village autonomy, the deficiencies of both the organic law and the supplementary measures were gradually exposed as these became “bottlenecks” restraining the development of village self-rule. Thus, the replacement of the provisional organic law with a new, permanent law is of critical import to the continued advancement of village self-governance. 2. The Current Status of the Legislative Work on Village Autonomy 2.1. The Law The provisional organic law contains twenty-one clauses, including specific stipulations on the nature, status, structure, operation, function, and duties of the village committee, as well as its legal relationship to the local government. Formulated and disseminated by the state legislature, it was a response to the practical changes taking place within the fundamental power structure of China’s rural communities. Though merely a “provisional” law, it is, nonetheless, innovative in nature and has been of inestimable value in the development of grassroots democracy, providing the legal framework for China’s experiment in village self-rule. Regrettably, ten years after its initial formulation, the “experiment” persisted—a rare occurrence in modern legislative practices. In January 1994, the Ministry of Civil Affairs drafted a comprehensive revision of the provisional organic law in accordance with the Legislative Plan of the Standing Committee of the National People’s Congress. The Organic Law of the People’s Republic of China on Village Committees (Revised Draft) was submitted to the State Council for deliberation on July 30, 1995. Drawing upon experience gained from the nationwide implementation of the provisional law, the revision included significant reforms relating to the status, structure, responsibilities, and election procedures of the village committee, as well as provisions regarding the village representative assembly, the charter on village autonomy, and so forth.2 However, two years later, no further progress had been made. Between February 26, 1988, when the Ministry of Civil Affairs

2

Ibid., 21–25.

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issued the original provisional organic law, and August 5, 1997, when the Notice on the Establishment and Improvement of the System of Publicizing Village Affairs and Advancing the Work on Rural Village Autonomy was issued, the Ministry of Civil Affairs distributed nine separate notices, each of which constituted a comprehensive administrative manual on the implementation of the provisional organic law. These notices contained instructions on a variety of village self-governance procedures (e.g., the election of new village committees) and documented outstanding achievements in the practical implementation of village self-rule, presenting measures for the improved functioning of the village committee, promoting the development of transparency in village governance, and so forth. While these administrative manuals and notices have had a positive impact on the implementation of the provisional organic law and the standardization of village committee practices nationwide, they cannot replace the formulation of critical “administrative laws.” The failure of the central government to provide standardized regulations for the practical application of village self-governance has precluded the consistent and uniform national implementation of the system, resulting in regional imbalances. From the standpoint of constructing a legal system, this deficiency of legal documentation is, indeed, a cause for great concern. 2.2. Regional Laws and Regulations During the past ten years, both the interpretation and application of legislation on village autonomy have varied across the country. Regional laws and regulations have been formulated in accordance with Clause 20 of the provisional organic law, which stipulates that the Standing Committees of the provincial, regional, and municipal People’s Congresses shall, in accordance with this law and based upon regional circumstances, formulate measures for the practical implementation [of the organic law] at the local level.

These regional laws and regulations may be roughly divided into three categories: The first category consists of various measures for the implementation of the provisional organic law, formulated by the standing committees of provincial, municipal, and regional people’s congresses. Prior to October 1997, twenty-five of the thirty-one provincial and regional governments had established such regulations. At the publication of this chapter, six provincial and regional governments, including

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those of Shanghai, Guangxi, Guangdong, Yunnan, and Chongqing, had not yet established practical implementation measures. Of these, Chongqing may be excluded from our discussion, as it only became a municipality in 1997. The second category of regional legislation is comprised of documents drafted by provincial people’s congresses and governments concerning the election of the village committee. Currently, only six out of the thirty-one provincial regions, namely Fujian, Jiangsu, Liaoning, Guizhou, Hebei, and Hunan, have issued such regulations.3 The final category includes documents issued by the provincial governments and municipal people’s congresses and governments providing specific administrative guidance. As stipulated in the 1982 Constitution, these documents are, in terms of legislative authority, equivalent to regional laws and regulations. Several examples of this third category of administrative documentation are provided in the following text. On September 3, 1990, the provincial government of Sichuan issued a notice providing models of successful establishment and implementation of autonomous village governance. In January 1992, the standing committee of the municipal people’s congress of Shenyang (capital city of Liaoning) passed a bill on the provisional procedures for village committee elections. On November 10, 1994, the CPC committee of Henan Province issued recommendations for strengthening grassroots governance and establishing village committees, which were subsequently circulated by the municipal government of the capital city of Zhengzhou on December 19 of the same year. Recommendations on the correct procedures for village committee reelection were proposed by the provincial departments of civil affairs and approved by the provincial governments of Henan ( June 30, 1994), Anhui (October 23, 1995), Jiangxi (October 23, 1995), and Hunan ( January 25, 1996). The government of Fuzhou issued provisional regulations on the strengthening of village finance regulations on January 29, 1995. The majority of these documents share a common feature: the specific implementation measures of the administrative directives were originally proposed by the provincial departments of civil affairs, The Shaanxi Province Bureau of Civil Affairs published Regulations on Shaanxi Province Village Committee Elections (Provisional) in September 1996. Since a provincial bureau of civil affairs does not hold legislative authority, this cannot be currently recognized as a formal regional regulation. 3

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sub-bureaus of the provincial governments, and were later ratified and issued by the provincial governments. This is in accordance with regional legislative and procedural practices and, thus, is quite common. However, several of these documents were issued jointly by the provincial or municipal CPC committees and governments. From the perspective of legal theory, the direct issuance of legal documents by an organ of the CPC should be avoided. 2.3. Regulations on the Implementation of the Law by Local Organs of Government The implementation of law at subprovincial levels includes both the issuance and passage of resolutions by lower level people’s congresses and the dissemination of decisions and decrees by local-level governments. In what follows, the author presents a synopsis of local-level regulations in the order of the level of administration. 2.3.1. Regulations on the Implementation of Law at the Municipal Level Regulations on measures for the enforcement of legislation at the municipal level are most commonly formulated by the standing committee of the municipal people’s congress and the municipal government, thereby possessing legal authority, and are primarily concerned with village committee election procedures. Examples of this kind of regulation include edicts issued on February 1, 1994, by the standing committee of the people’s congress of Chengde City, as well as those published by the mayor’s office of Xinxiang City on July 15, 1994, and by the Wuhu City government on December 22, 1995. In addition to this most prominent type of municipal regulation are those regarding the village representative assembly. Examples of this kind of regulation include the December 28, 1993, decree of the Chengdu City people’s congress standing committee and that of the Zaozhuang City people’s government on June 3, 1994. Additional municipal regulations concern the democratization and transparency of village governance. This type of regulation is exemplified in the directive issued by the Fuzhou City government on January 29, 1995, regarding the strengthening of village finance management, as well as in a document issued by the CPC committee and government of Kaifeng City on April 10, 1997, on the democratic operation and transparency of village committees. Additional rules and proposals have been initiated by municipal

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bureaus of civil affairs; however, due to the limited power of these organizations, the legislative authority of such proposals is limited. Following a number of legal reforms to China’s administrative system, which placed counties under the jurisdiction of city judiciaries, regulations on measures for the implementation of legislation issued at the municipal level had a direct impact on village autonomy in counties under municipal control. China’s thirty-one provincial-level regions currently contain a total of 335 administrative units at the municipal level (218 of these are cities, and the remaining 117 are prefectures or otherwise designated). It is estimated that no more than 70 of these, or 20 percent, are relatively successful in formulating effective regulations on the implementation of law. This dismal situation must be confronted and reformed. 2.3.2. Regulations on the Implementation of Law at the County (or City) Level In China’s administrative hierarchy, governmental organizations at the county (or city) level interact directly with those of townships at the most basic grassroots level, and function as the critical administrative link between upper and lower levels of government. For this reason, regulations issued by the legislative and administrative organs at this level, together with the guidance and support offered by township governments, have a profound impact on the quality and standard of village autonomy. At present, there exists a considerable range of regulations at this level, which, while covering most aspects of village autonomy, vary significantly in their objectives and achievements. In terms of content, these regulations are primarily concerned with procedures for the election of the village committee and secondarily concerned with the village representative assembly and the standardization of village administration. Some of these include additional evaluations of village activities and examples of successful practices of village autonomy. Information regarding the township’s supervision of village committees has also been disseminated. Contributing to the diversity of these regulations are the varying contributions of the different administrative levels to the drafting of these regulations. While some documents were issued by standing committees of county-level people’s congresses or the county governments, others were jointly drafted by local-level CPC committees and governments; still others were produced by bureaus of civil affairs. Many of these documents summarize and generalize innovations and successful experiences that have emerged

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from the implementation of village self-rule. An example of this is seen in the Procedures for the Election of the Third Village Committee of Lishu County. This rather unique regulation was distributed by the county CPC committee and government on November 15, 1994. Additional regulations on the rules and procedures for the village representative assembly were produced by the standing committees of the people’s congresses of Sichuan Province’s Pengshan County, Shaanxi Province’s Huayin City, and Hebei Province’s Luannan County, all of which are considered to be superlative representations of the implementations of village autonomy law. The most detailed document on record keeping as it relates to elections is the Notice on the Creation of Archives for the Election of the Village Committee, issued on August 12, 1994, by the Youxi County Committee on the Development of Grassroots Governance in Fujian Province. Both the standard and quality of county-level government work on formulating regulations for village autonomy vary greatly among China’s thirty-one provinces. Incomplete statistics indicate that of the 2,141 administrative areas at the county level (consisting of 445 cities and 1,696 other units), a mere 200 are considered to have produced practical and effective regulations on the implementation of village autonomy legislation; these constitute a mere 10 percent of Chinese counties. This is a dismal situation that we should not take lightly. 2.3.3. Regulations on the Implementation of Law at the Township Level Township government organs constitute China’s most basic administrative institutions, dealing directly with town and village residents, as well as their self-governing bodies. The quality of the rules and regulations issued by the township government directly impacts the legal legitimacy of village autonomy in local communities. Township governments nationwide produce over half of all locallevel documents on the enforcement of village autonomy legislation; a number of additional guidelines are generated jointly by township CPC committees and governments, and further regulations are provided by the standing committees of the local people’s congresses. The subjects of these documents fall roughly into ten categories: (1) procedures for the election of the village committee at the end of a term of office (e.g., those of the town of Tonghaikou under the jurisdiction of Xiantao City in Hubei Province); (2) procedures for the establishment of a sound and effective village representative assembly

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(e.g., those of Dalu Township under Ji’an City in Jilin Province); (3) regulations on the formation of village administrative bodies (e.g., those of the town of Pingshan under Bao’an County in Guangdong Province); (4) detailed rules on village cadre management (e.g., those of the town of Dongcheng in Helong City, Jilin Province); (5) experimental proposals on lawful and democratic village management practices (e.g., those of Yanmenkou Township, Jingshan County, Hubei); (6) experimental strategies for the implementation of directives provided by township governments to village committees (e.g., those of the town of Linjin, Linqi County, Shanxi Province); (7) agreements on village autonomy signed by township governments and village committees (e.g., those of Lufeng Township, Shanghang County, Fujian Province); (8) detailed rules on village committees’ support of township government (e.g., those of the town of Desheng, Dalian City, Liaoning Province); (9) township government policies on village committee regulations (e.g., those of Wangxinzhuang Township, Pinggu County, Beijing Municipality); and (10) notices concerning the election of village group leaders and representatives, as well as the establishment of village committee rules (e.g., those of Hubin Township, Gutian County, Fujian Province). Issued by township government organs, all of these documents aim to clarify the relationship between the township government and village committee and guarantee the practical implementation of the provisional organic law and corresponding local laws and regulations. Based on the most optimistic estimates, no more than 10,000 (or 20 percent) of China’s 45,227 townships have, to date, formulated relatively detailed standardized plans regulating the work of village committees. These figures indicate the urgent need to press township governments to accelerate the drafting of comprehensive plans providing guidance on village committee operations. 2.4. Village Resolutions and Charters on Village Autonomy Village resolutions and charters on village autonomy are issued by the local village council or village representative assembly under the guidance of the local village or county government. Embodying the spirit of the provisional organic law and corresponding regional regulations, these standardized documents take into account the actual practical needs and conditions of the specific village by which they are formulated.

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These local village regulations may, on the basis of structure and content, be divided into two general categories: village resolutions and village charters. The former serve to regulate the daily conduct of villagers. Concise, simple, and easy to memorize, these are considered the village’s most elemental written law. The “Three-Character” Village Resolution of Wangxinzhuang Township, Pinggu County, Beijing, is one such example. In contrast to the basic structure and content of the village resolutions is the complexity of the village charter. The charter is composed of multiple sections, including those covering general provisions, financial management, social order, and village organizations. It also includes an appendix, and the clauses contained therein may range in quantity from tens to hundreds. With content encompassing every aspect of rural life, it is habitually referred to as the “village constitution.” Among the many examples of such charters are those of Huojiadian Village in Lishu Township, Lishu County, Jilin Province; Oujiakuang Village in Zhaoyuan City, Shandong Province; and Longfeng Village in the town of Xin’an, Linli County, Hunan Province. At present, the village resolutions and village charter, as local mechanisms for the implementation of legislation on village autonomy, are developing inconsistently across the country and, as a result, lack standardization. Fewer than 550,000 (or just under 60 percent) of China’s 928,000 total village committees have formulated relatively standard village resolutions, and fewer than 180,000 (or just under 20 percent) of this total number have produced a standard village charter. These statistics indicate that the advancement of village autonomy still faces significant obstacles, and it may be some time before all villages have complied with this requirement. 3. Experience Gained through the Development of Legislation on Village Autonomy As a piece of legislation aimed at promoting autonomous village governance, the provisional organic law is invaluable. Since it is an actual experimental law, each of its clauses is derived from concrete circumstances and, as a result, carries explicit consequences. With the rapid changes of modern society and practical developments in village autonomy, a number of stipulations of the organic law no longer meet the demands of actual conditions. Therefore, from a legislative point of view, it is absolutely imperative that the experience gained through

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the implementation of existing village autonomy legislation be utilized in the revision and improvement of the provisional organic law. 3.1. The Village Committee Election System When, on June 1, 1988, the provisional organic law was first issued, one sentence in the ninth clause provided the sole legal basis for the election of the village committee: “The Chair, Vice-Chair and Members of the Village Committee are to be elected directly by villagers.” Therefore, local village committee elections were carried out in accordance with relevant stipulations provided in the Election Law of the National People’s Congress and Local-Level People’s Congresses. However, the application of this law at the village level proved challenging as the nature, scope, scale, methods, and procedures of a people’s congress election differ greatly from those of a village committee election. Consequently, regulations on village committee elections were included in the issuance of individual provincial Measures for Implementation of the Organic Law On December 26, 1990, the province of Fujian was the first to introduce Measures for Village Committee Elections, followed successively by the dissemination of Procedural Proposal[s] for Village Committee Elections at the Change of Office by the regional, municipal, county, and township governments, which contributed somewhat to the advancement of a more uniform and systematic village committee election process. From 1995 to 1996, the third village committee elections were held nationwide (in some provinces, these were the fourth or fifth elections). At the time of the elections, procedural guidelines, reflecting the collective experience gained from innovations in previous elections, were issued within each region, improving significantly the standardization and organization of village committee elections. These innovations fall into the following four general categories. 3.1.1. Auditing of the Village Committee’s Financial Management An audit of the financial management of Fujian Province’s village committees over the course of their three-year terms was conducted by township personnel, and the results were published prior to the election of the next committee.4 Because a village’s financial situation

4

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is of great interest to its villagers, the township departments of agriculture and finance conducted an audit of the finances of every village under their jurisdiction at least one month prior to the election and publicized the results. This was significant for a number of reasons. First, the transparency of village committee financial dealings was increased, thereby alleviating villagers’ concerns. Second, the practice established a deadline for the settling of village committee accounts and created a more harmonious atmosphere for the subsequent elections. This practice was also adopted by Gucheng County of Hubei Province. Prior to the elections, Changshou County, under the jurisdiction of Zhongxiang City (also in Hubei Province), prioritized “a thorough audit to increase electoral transparency” and even enumerated the areas to be audited: (1) committee term objectives, (2) major concerns raised by villagers, (3) infrastructure construction expenditures, and (4) the completion and fulfillment of financial contracts.5 This project put an end to the practices of previous eras, when village cadres, despite poor performance, scandals, or corruption, were continually reelected and frequently escaped criminal punishment by simply resigning from office. The practice of “preelection auditing” was adopted by a number of local governments nationwide. In the author’s view, preelection auditing is invaluable to the promotion of grassroots democracy and, thus, should be a standard legal procedure in village committee reelections. 3.1.2. Introduction of Absentee Ballots for Registered Voters Temporarily Residing in Other Locations In order to conduct successful voter registration, citizens’ lawful voting rights must be respected and equal and just elections guaranteed. The emergence of a large migrant worker population as a result of China’s rapid economic development has posed significant challenges to the effective reelection of the village committee. In a number of villages, it is common practice to contact—with the help of friends and relatives—villagers working in other areas via mail, telegram, or telephone, requiring them to return home to participate in an election;

县村委会换届选举试点情况介绍 [An Account on the Village Committee Reelection Experiment of Shouning County, Fujian Province] February 15, 1997. 5 Hubeisheng zhongxiangshi changshouzhen cunweihui xuanju jingyan jieshao 湖北省钟祥市 长寿镇村委会选举经验介绍 [An Account of the Experience of Village Committee Elections], Changshou County, Zhongxiang City, Hubei Province, June 1996.

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this practice has been widely ineffective. Consequently, the practice of allowing relatives to vote on behalf of migrant villagers has emerged. However, some villages, in order to avoid the inconvenience of handling migrant worker voting, have simply precluded these villagers from registering. The practice of permitting the relatives of absentee voters to vote on their behalf may lead to some disorder in areas where clan relations remain prominent, for such votes may not accurately reflect the voter’s own perspective. Of course, excluding migrant workers from registering to vote violates their basic legal rights. In order to confront this challenge, the Bureau of Civil Affairs of Fujian Province carried out an innovative experiment in the village committee election of Shouning County. During the fifteen days leading up to the election, all eligible voters were required to register in a particular place. The names of voters were published in one of two categories—local and absentee—prior to which absentee ballots were sent out to those voters unable to return home for the election. Returned ballots were opened using village ballot boxes on the day of the election, safeguarding the voting rights of absentee voters.6 In addition to those in Fujian Province, a number of villages in Hunan Province have adopted the practice of sending out absentee ballots to ensure the voting rights of villagers working away from home. The value of this practice is evidenced by the more than ten thousand absentee ballots returned by migrant workers in Hengyang City, Qidong County, during the 1996 election.7 The practice of absentee voting is a significant innovation in the village committee election system and should be promoted nationwide. This practice also conforms to international voting conventions. 3.1.3. Reform of the Procedures for Nominating Village Committee Candidates Critical to guaranteeing the integrity of village committee elections is the process by which the eligibility of preliminary nominees is confirmed and their candidacy formalized, as this is indicative of the extent to which the voters’ right to self-determination is being upheld. Current provincial, municipal, and regional laws include four methods for

Fujiansheng shouningxian cunweihui huanjie xuanju shidian qingkuang jieshao. Hubeisheng minzhengting 湖南省民政厅 [The Hubei Province Bureau of Civil Affairs], Hubeisheng disanci cunweihui huanjiexuanjugongzuo qingkuang jieshao 湖南省第三次 村委会换届选举工作情况总结 [A Summary of the Third Village Committee’s Elections of Hunan Province], July 25, 1996. 6 7

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the nomination of preliminary village committee candidates: (1) joint nomination by voters, (2) nomination by the village branch of the CPC or by community organizations, (3) nomination by the village representative assembly, and (4) self-nomination. During the 1995–96 nationwide election of village committees, the candidate nomination measures implemented in Lishu County, Jilin Province—referred to by locals as haixuan (海选)—were readily adopted in other regions, resulting in a general trend toward granting villagers the right to nominate their own candidates. In these competitive primaries, eligible villagers may nominate candidates through anonymous polls; thus, nominees are chosen (选) from the sea (海) of villagers—hence, the designation 海选. The procedures for the nomination of village committee candidates are clearly defined in the Implementation Measures for the Reelection of the Third Village Committee in Lishu County, Jilin Province, an administrative manual issued by the county government that is considered to be the most innovative and original of its kind. According to an official report issued by the Bureau of Civil Affairs of Jilin, 60 percent of its counties (or cities) conducted competitive primaries prior to the fourth village committee elections. Similar policies have been adopted by several other provinces: 76 percent of the villages of Gansu Province are currently practicing competitive primaries,8 and more than 60 percent of the villages under the jurisdiction of Yongzhou City and all of those in Xiangtan City (both in Hunan Province) carry out competitive primaries.9 This practice is also widespread in the counties (and cities) of Henan, Hebei, and Shanxi provinces. The purpose of these primaries is to introduce a competitive element into the village committee candidate nomination process and to produce formally recognized candidates through preliminary procedures. Competitive primaries have been widely welcomed by voters, who view these procedures as fair, open, and democratic. A crucial aspect of these preliminary elections is the vetting of nominees to prevent unqualified persons from being elected to the village committee. The majority of counties holding competitive primaries

8 Gansusheng minzhengting 甘肃省民政厅 [The Gansu Province Bureau of Civil Affairs], Gansusheng cunminweiyuanhui dierci huanju gongzuozongjie 甘肃省村民委员会第二 次换届选举工作总结 [A Summary of the Second Village Committee Elections of Gansu Province], July 10, 1996. 9 Hubeisheng minzhengting, Hubeisheng disanci cunweihui huanjiexuanjugongzuo qingkuang jieshao.

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have issued regulations on voting procedures. These may generally be summarized in the following requirements for candidacy: (1) candidates must work diligently to implement party guidelines and policies, as well as national laws and regulations; (2) candidates must be law abiding, honest, and unbiased, take a democratic approach to work, and be in touch with the needs of citizens; (3) candidates must be responsible and conscientious workers, have strong management skills, and be capable of advancing the economic prosperity of the village; and (4) candidates must be well-educated and in good health.10 Some provinces further stipulate that candidates “cannot heed feudal superstitions or be involved in religious cults.”11 The most comprehensive and user-friendly set of regulations on the vetting of candidates derives from Fujian Province and clearly establishes the following seven bases for ineligibility: (1) direct violation (or the infringement by an immediate family member) of family planning policies during the three-year period leading up to the election (or currently on probation for such a violation), (2) failure of village leaders and cadres to complete their appointed tasks (particularly those related to the enforcement of family planning policies) within their term of office, (3) perpetration of financial misconduct during the three years prior to the election (when the lawsuit has been settled), (4) presently under investigation or being prosecuted for transgressions of a financial (or other) nature, (5) identification by the police as taking part in critical crime prevention or as being a member of security personnel, (6) extensive travel outside of the village resulting in an inability to fulfill major duties, and (7) sentenced to community service or criminal punishment during the three years leading up to the election.12 The experience gained through these innovations has helped further improve the village committee election system.

10 Guizhousheng rendachangweihui 贵州省人大常委会 [The Standing Committee of the Guizhou Province People’s Congress], Guizhousheng cunminweiyuanhui xuanjubanfa 贵州省村民委员会选举办法 [Measures for the Election of the Village Committee, Guizhou Province], August 12, 1995. 11 Hebeisheng renminzhengfu 河北省人民政府 [The People’s Government of Hebei Province. Hebeisheng cunmin weiyuanhui xuanju zanxing banfa 河北省村民委员会选 举暂行办法 [Provisional Measures for the Election of the Village Committee, Hebei Province], November 22, 1996. 12 Fujiansheng shouningxian cunweihui huanjie xuanju shidian qingkuang jieshao.

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3.1.4. Introduction of Private Voting Booths and Standardization of Election Oversight Procedures The transition from traditional public ballots to private voting booths is of great significance and has received widespread support because, to a great extent, it protects voters from the disturbance or influence of external factors while exercising their right to vote. The Implementation Measures for the Reelection of the Third Village Committee in Lishu County, Jilin Province stipulates that private ballot booths must be made available either at voting centers or ballot stations in order to ensure that voters can freely exercise their democratic rights without interruption or interference.

A significant number of China’s provinces, including Jilin, Fujian, Henan, Sichuan, Hebei, Shanxi, Gansu, Hubei, Hunan, Liaoning, Heilongjiang, Shandong, and Jiangxi, have introduced private voting booths in some or most of their counties (or cities). For instance, 86 percent of the villages in Gansu Province provided voting booths during the reelection of their second village committees,13 preventing the interference of influential clans and parties in the voting process and election outcomes. “Electoral oversight,” or the monitoring and supervision of the election process for the purpose of ensuring that election objectives are reached, is a critical component of the electoral system. Although no standardized system for the oversight of elections currently exists in China, several provinces have introduced local measures that constitute the early experimental stages of electoral oversight. In recent years, a number of international organizations have contributed to the monitoring of the village committee election process in several counties (or cities) in Jilin, Fujian, Hebei, Sichuan, and Gansu provinces. In addition, election observers, deployed by the Department of Grassroots Governance under the Ministry of Civil Affairs, observed village committee elections in Hubei, Shanxi, Hebei, and Shaanxi provinces from November 1996 to the spring of 1997. In both of these electoral assessment projects, we see the underpinnings of electoral oversight, though in the cases of both the domestic and internationally organized operations, observers were not present throughout the entire electoral 13

Gansusheng minzhengting, Gansusheng cunminweiyuanhui dierci huanju gongzuozongjie.

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process, excluding these experiments from being considered formal instances of electoral oversight. Nonetheless, a number of provincial, municipal, and regional bureaus of civil affairs have, under the direct guidance of the central government, issued postelection evaluation measures, and these documents have been used by local counties as benchmarks for evaluating the legitimacy of village committee elections. The newly revised version of the Regulations and Procedures for Village Committee Elections, published by the Fujian Province Bureau of Civil Affairs, requires that the two candidates for the village committee chair nominate their own monitors from among the village voters; after being approved by the Electoral Leadership Group, these election monitors are responsible for overseeing the legality of the entire electoral process. During Shouning County’s electoral oversight experiment, monitors were deployed to 90 percent of the twenty-six village communities. While both postelection evaluation and electoral monitoring contribute to the process of electoral oversight, it is clear that a great deal of work remains to be done in order for electoral oversight to be established as a fundamental mechanism of the village committee election. 3.2. The Village Representative Assembly System The village representative assembly is a relatively new mechanism, first introduced in Zhengding County (Hebei Province), Leshan City (Sichuan Province), and Zhaoyuan City (Shandong Province) during the early days of the village autonomy system. In its Notice on Implementation of the Nationwide Campaign to Establish Superlative Village Autonomy Practices issued in September 1990, the Ministry of Civil Affairs approved the village representative assembly, highlighting its importance to the campaign for greater village autonomy and requiring its active promotion nationwide. The resultant inclusion of this new system in the majority of local measures for the implementation of the provisional organic law further clarified procedures for the establishment, organization, and operation of the assembly. Governments at the prefecture, city, county, and township levels further refined the system in their respective regulations on the implementation of legislation. By 1993, many local communities had established procedures for the election of village representatives. Incorporated into the general village committee election system, the village representative

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assembly system was established nationwide as an apparatus of village self-rule.14 At present, three distinct models of the village representative assembly are in operation across China: (1) the model in which the assembly is convened and chaired by the village committee (this is the most widespread model and is employed by the majority of local communities); (2) the model in which the assembly is convened and chaired by the local branch of the CPC (this is the model currently employed in Huantai County, Shandong Province); and (3) the model in which the assembly is convened and chaired by the chairperson or vice-chairperson of the assembly, who is elected by the assembly itself (this is the current practice in Hebei Province’s Zhao County and Chengde City and in Sichuan Province’s Dachuan City). Within the present fundamental power structure of the rural community, the positions of local party secretary, village committee chairperson, and representative assembly chair are commonly held by the same individual; thus, the three systems cannot be said to constitute a fundamental separation of powers. From a structural perspective, the representative nature of the village representative assembly seems to conflict with the direct democracy embodied in the system of village autonomy. However, from a practical standpoint, the representative assembly provides solid support for the development of grassroots democracy and the improvement of the system of village autonomy. It would be impractical to convene a village assembly to resolve every issue that arises in the course of daily village life. The direct democracy of village autonomy is primarily reflected in the rights of direct election, system formulation, and preliminary deliberation; this does not imply that all villagers should be directly involved in the resolution of every village-related issue. The matter of critical importance is the position of the representative assembly within the basic rural power structure. It should, in practice, operate as the standing body of the village assembly, empowered by the latter to make decisions and maintain necessary checks and balances when the village assembly itself is not in session. Thus, from

14 See Wang Zhenyao et al. 王振耀等著, Zhongguonongcun cuimindaibiao huiyi zhidu 中国农村村民代表会议制度 [Rural China’s System of the Villagers Representative Assembly] (Beijing: China Society Publishing House, 1995).

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a structural standpoint, it constitutes the internal disciplinary organ of the village autonomy system, effectively monitoring the work of the village committee, as well as the conduct of its members. The current representative assembly must be reformed to create a more unified, standardized system. This is particularly true of the representative selection process. Regulations concerning the election of assembly representatives should legally require that representatives be selected from among the fundamental constituent groups of the village. Concurrently, the nature, status, structure, duties, rights, and operational procedures of the assembly must be regulated. 3.3. The Transparency Policy in Village Governance The transparency policy is another systematic innovation evolved by the rural communities in the process of implementing the provisional organic law. As early as May 14, 1989, the local party committee and government of Gaocheng County, Hebei Province, issued the Resolution on the Countywide Implementation of the Policies of Transparency, Participation, and Oversight, in which the practices of the town of Gaocheng in institutionalizing transparent village governance were elucidated and endorsed. Taking the issues of greatest concern to rural citizens as its foundation, this document lays out eight guidelines for transparency in governance: (1) exceptions to and penalties for violations of family planning policies must be transparent, (2) the distribution of land must be handled openly, (3) the management of public funds and finances must be transparent, (4) the distribution of production resources must be transparent, (5) new ventures of collectively owned enterprises must be made public, (6) the recruitment of workers for village-owned enterprises must be open, (7) the signing of financial contracts must be transparent, and (8) the duties and goals of village cadres must be publicized. This 1989 notice also outlines the requirement of “participation”: all villages must take steps to encourage villager participation in dialogue and decision making on public affairs. The process, structure, and content of participation are also specified. Finally, specific measures and methods are laid out for villager involvement in village affairs “oversight.” The establishment of a system of village transparency was an inevitability in the village committee’s implementation of “self-government, self-education, and self-service.” Thus, a number of rural communities simultaneously and spontaneously drafted “transparency policies” to

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supplement their implementation of the provisional organic law. On December 13, 1990, the Central Committee of the CPC approved and distributed a notice entitled Summary of the Seminar on the Nationwide Construction of Village-Level Organizations, stipulating the “strengthening of measures to improve the system of transparent village governance and the monitoring of village committees by villagers.” On December 8, 1994, the Ministry of Civil Affairs issued the Provisional Guidelines for the Implementation of the Nationwide Campaign to Establish Effective Village Autonomy Practices, specifying the “establishment of the policy of transparent village governance and the mechanism of oversight” and the “democratic regulation of village affairs” as the “target and purpose of the campaign.” The policy was subsequently promoted and implemented nationwide. During the past few years, much experience has been accumulated from the implementation of transparent governance policies. Beginning in January 1996, the standards outlined in the Six Stipulations for Transparency—issued originally in Zhao County—were adopted throughout Hebei Province. This document specified five standards for transparency—that is, transparent function, transparent method, transparent time frame, transparent position, and transparent management—as the means by which the sixth standard of transparency (transparent results) should be achieved.15 By the end of July 1996, 99 percent of all villages in Hebei Province had implemented the stipulations for transparency, and 60 percent of these had surpassed the standard requirements.16 The widespread practice of transparency has increased understanding and improved the relationship between villagers and cadres, resolving fundamental conflicts and contributing to greater overall social harmony. On February 27, 1997, the Henan Province CPC committee and government jointly issued Recommendations for Promoting Transparency in Village Affairs and Democratic Administration of Rural 15 Yin Wenru 尹文儒, “Tuixing zhengwu liu gongkai, shenhua nongcun di er bu gaige 推行 村务六公开”, 深化农村第二步改革 [Implementing the Six Stipulations for Transparencies in Village Affairs and Conducting In-Depth, Second Stage Rural Reform], January 6, 1997. 16 Wang Zhenyao and Liu Xitang 王振耀、刘喜堂, Jianlicunmindaibiao huiyi tuixing cunwu gongkai yingaizuowei jinhou yigeshiqinongcundejiben zhengzhigongzuo—guanyu hebeisheng tuixing cunwu gongkia qingkuang de diaocha 建立村民代表会议, 推行村务公开应该作为 今后一个时期农村的基本政治工作——关于河北省推行村务公开情况的调查 [Establishing the VillageRepresentative Assembly and Implementing the System of Transparent Village Governance Should Become Fundamental Political Tasks in the Period to Come—An Investigation of the Systematic Implementation of Transparent Village Governance in Hebei Province], November 1996.

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Communities across the Province, stipulating eight areas of village affairs in which transparency should be promoted and detailing rules and procedures on the implementation of the transparency policy. On April 11 of the same year, the local CPC committee and government of Kaifeng City, Henan, jointly produced Detailed Rules on the Implementation of the Village Governance Transparency System, which established general regulations for transparency in village affairs and provided a unified standard for the process, operation, time frame, and management of transparent governance, as well as measures for inspection and regulation. The implementation of the transparency policy throughout China’s rural communities has been rather inconsistent, and excellent examples of the practice of this policy are still rare. In the case of some villages, the policy of transparent governance is only applied in one area of village affairs: financial management. In other rural communities, the policy is applied in three, four, or even twelve aspects of village affairs. The extent to which the transparency policy is applied in village management roughly corresponds with a village’s level of socioeconomic development. The structure of village administration also varies across rural communities: while in some cases, the affairs of the village are overseen by the local township, in others, village finances are managed entirely by the township, due to a lack of order in the village financial system and the common village practice of submitting grievances to higher levels of government. While this practice may, in the short run, result in the resolution of greater quantities of villagercadre disputes, it conflicts directly with the fundamental principle of autonomous village governance embodied in the provisional organic law and, therefore, should not be advocated as a long-term practice. Experience has shown that transparency in village governance is a critical element of the village autonomy system. The degree of openness in village affairs directly impacts the practical advancement of the goal of governance and oversight by the people. Transparency not only aids in the resolution of significant issues of public concern and alleviates conflicts between villagers and cadres, but also contributes considerably to the development of democracy at the grassroots level. To this end, the experiences of local communities should be systematically studied and summarized. The revised provisional organic law should include clauses supporting the legal status of the policy of transparent village governance.

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3.4. The Village Cadre Training System The establishment of the autonomous village governance system over the past ten years has, in practice, been a process of cultivating in villagers the legal notion of the “supremacy of law.” The effective implementation of the system of grassroots democracy embodied in the organic law not only depends upon the enforcement of legal organs but also depends upon the participation, respect, and voluntary compliance of rural cadres and citizens. Successful governance under the rule of law is not achieved through the replacement of long-standing cultural traditions with legislation and regulations, but rather through the incorporation of citizens’ respect for law into the customs and practices passed down through the generations. Herein lies the greatest challenge to the effective establishment of the rule of law in China and the greatest obstacle to the practical implementation of the organic law. A survey of local experiences in implementing the organic law clearly indicates that the majority of violations of this law have occurred as a result of the refusal of township cadres and newly elected village committee cadres to acknowledge “the supremacy of the law over the power of the individual.” Moreover, the majority of villagers lack a comprehensive understanding of the legal channels through which their individual rights and interests may be defended and, thus, tend to silently suffer the infringement of these rights. Resultantly, heinous violations and obstructions of the law persist without remedy. Furthermore, in order for the implementation of legislation relating to village autonomy to be effective, it must proceed from a strong systematic foundation, rather than be a superficial legal display. In many rural communities, lively activities are staged for village committee elections, while the administration of village affairs remains in shambles, pointing to the lack of a well-established system. The functioning of a sound and effective system is reflected not only in the standardization of a comprehensive set of rules and regulations governing the daily administration of village affairs but also in the implementation and enforcement of these rules in the daily lives of citizens. To this end, cadres must be equipped with progressive management theories, methods, and experiences; these are, at present, generally lacking among rural officials. In light of the aforementioned realities, it is generally accepted that the continued promotion of an effective system of autonomous village governance necessitates the establishment of a standardized training

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system for rural officials. Such a system should focus on the training of township cadres and newly elected village committee leaders. A number of rural communities across the country have already undertaken this project, and in support of their efforts, the Ministry of Civil Affairs has founded a national training center for rural cadres, organized the production of training manuals, and conducted the first training courses. Having taken these first steps, we must now establish a formal national training network, produce a scientific training methodology, create a vigorous yet practical training program, and require the staggered participation of township and village committee leaders nationwide. This is not only an objective requirement of the political campaign for grassroots democracy, but also a strategic measure of paramount importance to the maintenance of national peace and prosperity. 4. Current Obstacles to the Establishment of the System of Autonomous Village Governance 4.1. Problems with the Provisional Organic Law Experience gained through the implementation of the provisional organic law over the past ten years indicates that while, overall, this piece of legislation provides a good basis from which to develop the system of autonomous village governance, certain deficiencies remain that must be addressed. The most prominent of these are exposited in the following text. (a) The definition of village autonomy is incomplete and imprecise. As specified in the organic law, the village committee is “a self-governing organization at the grassroots level.” This definition is incomplete in that it fails to include “self-development” among the roster of rural citizens’ rights. It also lacks a specific, practical definition of the status and function of the village committee within the rural power structure. The transformation toward village autonomy within China’s rural system necessitates the further clarification of the fundamental nature and function of the village committee to include the following five factors: (1) its relationship to the state as the grassroots system of popular government elected by rural citizens, and its obligation to fulfill legal requirements such as the recognition of the administrative leadership of the township government; (2) its management of the collectively owned properties of the rural community (i.e., farmland, forests,

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bodies of water, beaches, riverbanks, etc.); (3) its seniority as the highest body of village governance; (4) its function as the representative of village sovereignty in dealings with external bodies, including the township government; and (5) its status as the highest administrative unit below the township, regardless of nomenclature (due to three thousand years of administrative history, the designations of China’s rural communities vary from place to place). (b) The relationship between the township government and the village committee is inadequately defined. According to the provisional organic law, the township government provides the village committee with guidance, support, and assistance, while the village committee assists the township government. However, the precise content, form, and course of this guidance, support, and assistance are not provided. Because the grassroots village committee falls under the administrative jurisdiction of the township government and the township government is well-versed in administrative procedures, this guidance, support, and assistance oftentimes leads to the establishment of a hierarchical relationship between the township government and the village committee. As a result, it is common practice in some rural communities for township governments to nominate candidates for village committee elections, in lieu of holding “competitive primaries.” Similarly, village cadres are often appointed by the township government rather than elected by rural citizens. There has been a marked increase in such violations of village autonomy legislation in recent years, and while the factors contributing to these infringements are numerous, the greatest of these is the law itself, which leaves too much room for interpretation. (c) The description of the functions and duties of the village committee provided in the provisional organic law should be more specific and concise. First, the committee’s role in the oversight of collectively owned village property must be clarified, since this is critical to defining the committee’s legal status. Second, the goal of the village committee in developing both the material and spiritual culture of the village must be clearly defined. Third, the nature and scope of the assistance provided by the village committee to the township government must be clarified. Most importantly, the relationship of the village committee to other village-level organizations should be elucidated in order to avoid the replacement or domination of the committee by other governing bodies.

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(d) Although the provisional organic law stipulates that the village committee is to be directly elected by villagers, it fails to specify the rules and procedures for the election; the establishment of such a standard is imperative. Many provinces and municipalities have formulated a complete guide of election practices and regulations; the most successful of these should be utilized and integrated in the revision of the organic law. With regard to the village assembly, the law currently states that “villagers above the age of 18 may attend the Assembly, or each household may choose one representative to attend the Assembly.” This stipulation is clearly problematic as it has given rise to the predominance of household representatives in real election, depriving certain groups within the rural community, particularly women and young people, of their democratic rights and conflicting with the spirit of the legislation. The village assembly must be clearly differentiated from the meeting of household representatives in nature, function, and duty. (e) In specifying that “the Village Assembly is to be convened and chaired by the Village Committee,” the provisional organic law fails to clarify key issues such as the supervision of the work of the village committee, the handling of illegal activities and incompetent committee leaders, the response to the domination of the village committee by a religious group or leader or a “village despot,” and the establishment of systems and mechanisms to ensure the impartiality of the village committee. In this regard, it is the author’s belief that the village assembly must, first and foremost, be explicitly defined as the highest village authority so that no ambiguity exists on this point either in legal theory or practice. Second, the revised organic law should include further stipulations on the role and function of the village representative assembly, including the role of this body in exercising the power and fulfilling the duties of the village assembly when the latter is not in session, the legal status and structure of the village representative assembly, and its relationship to other village-level organizations. It should be endowed with the power to make decisions on major village issues, assess the administration of village affairs, impeach incompetent village cadres, veto the erroneous rulings of the village committee, demand a revision of the village regulations and the village charter, and so forth, in order to ensure the lawful implementation of village autonomy legislation. (f ) The provisional organic law lacks sufficient regulations on the legal protection of public and individual interests. The revised legislation

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should include clauses concerning the protection of villagers’ legal rights in relation to property ownership; the scope, process, and structure of village administration; and the functions, measures, and practices for maintenance of transparency in village affairs. Precise regulations authorizing election funding, compensation of cadres, public spending, and so forth, as well as channels for judicial remunerations must be provided in order to avoid legal loopholes and prevent corruption. All illegal acts must be prosecuted in accordance with pertinent state laws so as to safeguard the democratic rights of villagers. (g) The provisional organic law merely requires “that the Village Committee allocate an appropriate quota of female members”; however, in many regions, the ratio of female to male village committee members actually dropped in 1995, and some villages failed to elect a single female member. Therefore, the law should include specific stipulations to ensure the election of female cadres and protect the legal rights and interests of female villagers. (h) The current provisional organic law fails to include stipulations establishing a standardized training system for village cadres. Based on the practical needs and experiences of various rural communities, the revised law should establish the legal status of the rural cadre training system and necessary corresponding regulations. 4.2. Problems in Regional Regulations Although significant experience has been accumulated by numerous provinces, municipalities, and autonomous regions through the successful issuance of measures for the implementation of the provisional organic law and election procedures (which should be codified and promoted widely), persistent problem areas must be addressed. Examples of these include the following. (a) The primary purpose of the provincial measures for implementation is not to reiterate the various stipulations of the organic law but rather to analyze and elaborate on the principles contained in the law, focusing specifically on those clauses that relate to procedural implementation. At present, particularly with regard to the proper relationship between the township government and the village committee, the majority of provincial measures for implementation simply echo the generalized tone of the original law—that is, that the township government should provide guidance, support, and assistance to the village committee, while the latter should assist the former in its work.

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Very few measures provide details on the practical implementation of this relationship based on local needs and conditions. (b) Certain measures for implementation include a clause specifying that if the position of the Village Committee Director remains vacant, the township or town people’s government may, upon the agreement of the villagers, appoint an Interim Acting Director, whose terms of office should not exceed six months.

However, no additional details are provided regarding the means by which villager agreement should be obtained and the interim acting director should be appointed. This endows the township government with excessive arbitrary authority, which, in practice, may result in the violation of the villagers’ right to self-governance. Such clauses conflict with the principle of direct democracy embodied in the organic law and must, therefore, be revised. (c) According to some provisional measures for implementation, the village representative assembly has the power to “dismiss, replace, or accept the resignation of members of the Village Committee.” This runs counter to the fundamental spirit of direct democracy. Since the village representative assembly is the standing body of the village assembly, its authority should primarily be limited to decision making and maintaining checks and balances. While the village representative assembly may hold the authority to impeach members of the village committee deemed incompetent, to expand its role any further would be inappropriate. (d) The work to formulate provincial measures for implementation has been highly uncoordinated across the country. Ten years after the enactment of the provisional organic law, six provinces have yet to issue such measures; that is, six regions have implemented the system of village self-governance without formulating a single legally binding document to support its progress. This is obviously unacceptable. 4.3. Problems in Law Enforcement Regulations at the Municipal, County, and Township Levels Although these local-level regulations have played a positive role in the establishment and development of village autonomy, significant procedural problems have also surfaced. To cite a few examples, some regulations at this level include official positions not specified by the organic

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law (e.g., the positions of chair, vice-chair, director, and deputy director of the village representative assembly). Moreover, certain local regulations concerning the standardization of village administration include the management of the local CPC branch, which is obviously inappropriate. The majority of these issues appear in regulations issued jointly by the county CPC committee and government. In addition, the regulations of some cities and counties require rural cadres to keep conventional office hours (i.e., spend an eight-hour day in an office, which is obviously impractical). A number of counties have issued regulations that require “the township government to take charge of village finances.” Originally, these regulations may have been designed to assist the village committee in managing village funds in order to strengthen the auditing and oversight of village finances. In some villages, such as those contending with collapsed administrations or unmanageable affairs, such measures may have been effective in preventing circumstances from deteriorating further. However, this should be considered an interim solution, not a standard practice to be widely promoted; the very principle of township management of the village fundamentally contradicts the spirit of the Constitution and the provisional organic law. When it comes to the regulations, measures, procedures, and so forth, issued at the township level, the problems are even greater and more numerous. Several of these problems are outlined in the following text. (a) The principle content of a number of these documents constitutes a mere reiteration of the laws and regulations put forth by the province, city, or county. This is most apparent with regard to the election of the village committee: many township documents fail to provide detailed regulations integrating the legal requirements of the organic law with the practical measures of implementation required by the specific conditions of the local rural community. (b) In some instances, township regulations on village administration combine the village branch of the CPC and the village committee, even though the natures, function, structures, and work styles of these two village organizations differ considerably. In blurring the lines between the party and the government at the local level, these provisions violate the spirit of the Constitution and the provisional organic law. (c) With regard to the appropriate relationship between the village committee and the township government, certain township regulations interpret the clauses in the provisional organic law endorsing the

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township’s “guidance” of the village committee to mean that the latter is merely a branch or subcommittee of the former, giving the township government free reign to manage village affairs directly. These regulations violate the legal right of villagers to autonomous rule. 4.4. Issues Arising in the Village Regulations and the Village Charter on Autonomy The village regulations and the village charter on autonomy constitute the written law of a village (albeit the two are distinct documents). While the former is a concise agreement regulating villagers’ ethical conduct with the aim of maintaining social integrity and emphasizing morality, the latter is a collection of administrative procedures regulating village autonomy, the purpose of which is to ensure that the village practice of autonomous governance is standardized, systematized, and in accordance with the law (as such, it is inherently more complex both in content and structure than the village regulations). The problems that exist in relation to these two forms of village law are easily identified and are briefly described in the following: (a) The provisions of the regulations and the charter should be constructive, well-meaning, and reasonable. However, in the author’s experience, the documents issued by some rural communities virtually resemble a list of fines, as they consist of an inventory of dozens of fineable actions. Some village regulations go so far as to declare that villagers who fail to attend a village assembly or household representative meeting “shall be fined 15 RMB per instance per head.” Even more peculiar is a rule requiring that in the case that a cadre’s crops or animals are targeted in revenge and no one individual is found responsible, local villagers shall compensate for some of the damage.

Clearly, village regulations dominated by fines would be easily implemented by cadres; however, such a law cannot be considered sound, for it conflicts directly with the principle of cultivating good behavior through education rather than punishment. (b) The provisional organic law clearly states that village regulations shall not contradict the Constitution, laws, and regulations.” Thus, village regulations must appropriately handle various kinds of relationships, never promoting the interests of specific individuals, groups, or villages at the expense of those of other individuals, neighboring

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villages, or the state; to do so would be to forfeit legal legitimacy. Nevertheless, the regulations of certain rural communities include stipulations such as the following: • In the case that one’s pigs or goats enter another’s field to eat crops, the owner of the crops may kill the animals without compensating the animals’ owner. • A farmer using poison in the fields to protect crops shall not be held responsible for the deaths of animals or people resulting from this poison. • Female village residents who marry non-village residents (unless they be citizens of a city), shall change their place of residency to the hometown of their husband’s family; failure to do so shall result in the repossession of allocated farmland and the loss of all benefits.

Such regulations run directly counter to the essence of the Constitution and other relevant laws and must be rectified. (c) The drafting of the village regulations and the village charter on autonomy by the village assembly should be standardized so as to avoid inconsistency. At present, there is great discrepancy among rural communities with regard to which village body is responsible for drafting these documents: while in some villages the responsibility falls upon the village assembly, in other villages, the responsibility falls on the village representative assembly, and in still others, the responsibility belongs to the village committee. In some cases, the county (or city) government drafts a uniform regulations document and charter to be implemented in villages countywide. The greatest shortcoming of this lack of standardization is the inevitable diversity of the contents of these documents as a result of the variation in the originating body. While the county government should provide guidance in the drafting of village documents in order to ensure their legal legitimacy, the government should not usurp the process in order to create a uniform regulations document and charter to be applied identically across the county, for these documents must take into consideration the specific characteristics and conditions of individual villages. Therefore, the role of the county government should be to disseminate information on and promote understanding of the law among the rural populace and their local leaders in order to standardize the procedure for the drafting of the village regulations village charter, examine these documents to determine their legitimacy, and offer guidance on their improvement.

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5. Conclusion This chapter has discussed and analyzed the current condition of and accumulated experience in autonomous village governance, as well as the problems arising from the implementation thereof. Having recommended areas of reform, as well as corresponding strategies for the implementation of these, the author offers the following summary: (a) Great changes have taken place in the fundamental power structure of China’s rural communities since the implementation of the Reform and Opening-Up Policy. In order to adapt to these changes, the Chinese government has reformed the system of village rule, taking the initial steps toward establishing a legal framework for autonomous village governance. These reforms have resulted in significant political developments in China’s rural communities, which have drawn attention from around the world. However, in its practical establishment and implementation nationwide, the system of autonomous village governance has outgrown the original legal framework upon which it was founded ten years ago, necessitating not only a major revision of the provisional organic law but also the development of corresponding laws and regulations in order to fill the void that exists in regard to practical implementation. At the same time, the emergence of inconsistencies in the drafting of corresponding regulations for the implementation of the organic law by various organs of governance at different levels of society must be addressed and the content of these regulations improved. (b) Over the past ten years, much experience has been accumulated through the innovative implementation of autonomous village rule by rural communities nationwide, including the utilization of the preelection audit system, the “competitive primary” system, private voting booths, election monitoring, absentee ballots, the system of the village representative assembly, the implementation of the village governance transparency policy, and so forth. These innovations have further enhanced and complemented the implementation of the system of village autonomy and, thus, should be distilled into concrete legal clauses that may be used in the revision and improvement of the provisional organic law. (c) The weaknesses within the current legal framework of village autonomy must be corrected or amended in accordance with the principles and ideals embodied in the rule of law, such as fairness, equality, and respect for human dignity. The ultimate goal should be the establishment

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of a solid foundation for the advancement of democracy and the rule of law in China’s rural communities. (d) The author hopes that the improvement of village autonomy legislation shall, without delay, be prioritized on the legislative and administrative agendas of state governing bodies in recognition of the strategic significance of this work in establishing a solid foundation for the construction of a socialist state under the rule of law.

PART THREE

ON THE RULE OF LAW

CONSTITUTIONALISM AND CHINA Li Buyun* Translated by Kristin Lauria Introduction While many in China view constitutionalism as the ideal political system of the modern age, much less consensus exists with regard to the answers to the questions concerning what exactly constitutionalism is, what fundamental components it includes, and in what manner the existing political system would need to be reformed in order for China to adopt a system of constitutional governance. In order to answer these questions, a number of theoretical and ideological issues must first be resolved. This chapter discusses the nature of constitutionalism, identifies its three key components, offers a theoretical justification for these three as they directly relate to China’s unique situation, and examines the feasibility of implementing a Chinese constitutionalism. 1. What Is Constitutionalism? Mao Zedong once said, “Constitutionalism is democratic politics.”1 At the time of this statement, the call for constitutionalism was being used by the Communist Party of China (CPC) as a weapon in their fight with the Guomindang (the National People’s Party founded by Sun Yat-sen). During that time, Mao explicitly promoted the notion of a free and democratic China calling for a China in which free and fair elections were conducted at all levels of government with government

* This chapter comprises a series of speeches presented by the author at the “Seminar on Constitutionalism and China,” held from February to May of 1993 at Columbia University in New York. The chapter was, under the direction of the author, published in the second volume of Collected Works on the Comparative Study of the Constitution (Beijing: China’s Democratic and Legal Publishing House, July 1993). Japanese professor Kojiro Niishimura translated the article into Japanese for publication in the forty-sixth issue of the third volume of Banda Law in 1996. 1 Mao Zedong 毛泽东, “Xinminzhuzhuyi xianzheng [Constitutionalism of New Democracy],” Mao Zedong xuanji 毛泽东选集 [Selected Works of Mao Zedong] 2 (1952): 726.

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officials at all levels being selected via anonymous ballots, making them accountable to the electorate. According to Mao, China would, through constitutionalism, realize Sun Yat-sen’s Three People’s Principles; Lincoln’s principle of “government of the people, by the people, for the people”; and Roosevelt’s Four Freedoms.2 Around this time, Zhang Youyu, well-known jurist of the CPC, wrote a series of articles elucidating the concept of constitutionalism.3 However, after the founding of the People’s Republic of China (PRC) in 1949, constitutionalism was dropped from the political vocabulary of the CPC leadership, and scholars rarely touched upon it in their work. Following the implementation of the Reform and Opening-Up Policy in 1978,4 the topic of constitutionalism again resurfaced, but scholars tended to equate constitutionalism with the Constitution.5 Only very recently, following the convening of two academic conferences in December 1992, did scholars begin again to examine systematically the topic of constitutionalism.6 What, then, is constitutionalism? In the author’s view, constitutionalism may be defined as a political system embodied in the realization of a series of democratic principles and systems fundamentally maintained under the rule of law, with the goal of fulfilling the

2 “Da lutoushe jizhe ganbeier shierxiang menti 答路透社记者甘贝尔十二项闷题 [The Twelve Issues Answered to Gabriel],” in Zhonggongdangshi jiaoxuecankaoziliao 中 共党史教学参考资料 [Reference Materials for the Teaching of the History of the Communist Party of China]. 3 In his “Constitution and Constitutionalism,” Zhang Youyu argued that “Constitutionalism can be described as a political formation for which the Constitution defines the state structure, organizations of power, and the relationships of mutual rights and duties between the government and the people. The government and people are both subject to these provisions. Benefitting from these rights and assuming these responsibilities, neither may freely violate these provisions.” See Xianzheng luncong 宪政论丛 [Treatise on Constitutionalism], vol. 1, 97–103, 138–140, 141–145. 4 Launched by Deng Xiaoping in 1978, the Reform and Opening-Up Policy initiated China’s transition from a centrally planned economy to a market-based system. 5 For, Chen Yunsheng, at the Law Institute of the Chinese Academy of Social Sciences, took constitutionalism and constitution as synonyms in his Minzhu xianzheng xinchao 民主宪政新潮 [New Waves on Democratic Constitutionalism] People’s Publishing House, 1988). 6 The first of these, “The International Conference on Constitutions and Democracy,” was presided over by Professor Xu Chongde, and the second, “The Second National Conference on Comparative Studies of Constitutions,” was organized by Professor Li Buyun. During this conference, the author of this chapter proposed the idea of the “three elements of constitutionalism” (democracy, rule of law, and human rights), and both domestic and international scholars explored this notion in some depth.

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most widespread human rights. Under constitutionalism, a country is governed in accordance with its constitution, which embodies the ideals of modern civilization. Constitutionalism is comprised of three essential components: democracy, the rule of law, and human rights, with democracy constituting the foundation of, the rule of law as the critical requirement for, and human rights as the guaranteed goal of constitutionalism. In defining constitutionalism, it is necessary to differentiate a constitution from constitutionalism, for while the two are intricately linked, there exists between them differences of principle. While in order for a country’s political system to be considered constitutionalist it must have a good constitution, the existence of a constitution does not guarantee constitutionalism, as evident in the example of Hitler’s Germany. In the author’s view, there exist at least three fundamental differences between constitutionalism and a constitution. First, a constitution is a law, or a form of social standards, whereas constitutionalism is a political system or model. While a constitution exists on paper, constitutionalism exists in practice. If a constitution is the legal expression of constitutionalism, constitutionalism is the essential substance of the constitution, though certain constitutional provisions, such as those concerning the national flag, the national emblem, or the national anthem, are not related to constitutionalism. Second, the modern era has produced both good and bad constitutions. For example, the Constitution of the South African apartheid government would clearly be considered a bad constitution, for it maintained a system that perpetrated egregious violations of fundamental human rights; thus, in the case of South Africa, there existed a constitution without constitutionalism. Third, despite possessing a “good” constitution, a country’s political leaders may choose to disregard it and enforce a system of dictatorship. In short, constitutionalism, in practice, requires the legal foundation and defense mechanism of a good constitution, while the ideals of constitutionalism constitute the foundation for drafting and enforcing a constitution. The concept of constitutionalism is not a static one. Traditionally, constitutionalism was comprised of two fundamental components— democracy and the rule of law—and these concepts are constantly changing and developing. The introduction of human rights as a fundamental concern and goal of constitutionalism came with the

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advancement of material and spiritual civilization and international communication following World War II. In both theory and practice, constitutionalism combines the individual and the universal. The pursuit and possession of interests and the assessment and orientation of values are shared commonly by all humanity and constitute the universal aspect of constitutionalism. However, the various economic, political, cultural, and historical characteristics and conditions of individual countries lead to variations in individual models of constitutionalism. Democracy, the rule of law, and human rights comprise the fundamental spirit and principle of constitutionalism, which are universally applicable, but the specific course by which these are realized and the concrete form that they will take will differ from country to country. Neither the universality nor the individuality of constitutionalism can be denied, but it would be equally incorrect to emphasize one of these aspects at the expense of the other. 2. Democracy Popular sovereignty is the essence of democracy, or as Lincoln said, the “government of the people, by the people, for the people.” First, this means that the entirety of state power rests in the hands of the citizens; thus, government power, sanctioned by the people, is limited by the constitution, and it would be illegal for the government to exceed its constitutionally defined authority. Second, the citizens are the masters of their country, and the government is their servant; the government exercises power on behalf of the people and, thus, must be accountable to the people. Finally, in carrying out all of its various tasks, the government should promote the well-being of its citizens, rather than pursue individual, organizational, or party interests. The principle of popular sovereignty must be embodied in and guaranteed through a chain of fundamental democratic systems and mechanisms. In the author’s view, the following four democratic characteristics and mechanisms constitute the most fundamental and universally applicable to the implementation of popular sovereignty: (1) free and fair general elections, the outcomes of which reflect the genuine will of the voters; (2) the ability of all elected power organs to effectively carry out their mandated powers without being influenced or superseded by nonelected individuals or government organs; (3) a mechanism of checks and balances to guarantee the separation

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of powers within the political structure and prevent corruption; and (4) citizens’ guaranteed ability to fully enjoy the rights of information, participation, political discussion, and government oversight so that through the representative system of government, state power remains in the hands of the people. The first component of democracy (which itself is the first of the three key elements of constitutionalism) is the conducting of general elections for national offices of government. A democratic government must be recognized by its citizenry; the most fundamental way of ensuring the people’s support for the government is the forming and reforming of government through general elections. As the size of most countries precludes the practice of direct democracy, under which the people themselves exercise legislative, judicial, and executive power, most states have instead adopted representative systems, under which the elected government exercises power on behalf of the electorate. It is therefore critical that elections are impartial. However, interferences in and manipulations of so-called “free” elections by dictators, armies, or other parties with entrenched interests are relatively widespread, despite the illegality of such practices. This is clearly incompatible with constitutionalism. There is, at present, a growing trend toward inviting internationally renowned public figures or the United Nations (as in the case of Cambodia) to oversee domestic elections in order to prevent the exacerbation of internal conflicts. While some have argued that the representative system is “the institutional structure of political authority of capitalist countries,” this is clearly an inaccurate representation.7 China’s People’s Congress system is a form of representative government. In 1953, China drafted its first piece of electoral legislation and began implementing general elections, reflecting the principles of fair and universal elections and combining direct and indirect forms of voting with the use of anonymous ballots. In July 1979, China issued a new electoral law, which would later be amended. These amendments stipulated that not only may candidates for election be nominated by the CPC, or individually or jointly by the democratic parties and people’s organizations, but any three or more voters or representatives can nominate candidates for the Congress.

7 Zhongguo xianfaxue ruogan wenti taolun zongshu 中国宪法学若干问题讨论综述 [A Summary of the Discussion of Some Questions on the Study of Chinese Constitution] (Lin University Press, 1992), 186.

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However, previous abuses persisted in the practical implementation of the amended law as the nominations of those in power were automatically confirmed by their subordinates; in the absence of fundamental reforms, this practice has persisted. In the author’s view, the reform of the Chinese electoral system requires the resolution of a number of ideological issues. First, the importance of the competitive aspect of the electoral system must be truly understood. In order to maintain its relevance and vitality, the CPC establishment and membership must perpetually be faced with internal and external competition. In this way, stagnation, retrogression, and corruption may be avoided. Second, the populace must be genuinely trusted. The ability of voters to nominate candidates and participate in multicandidate elections is the most fundamental requirement of democracy. A system in which candidates are nominated arbitrarily by a minority—thereby, failing to rely on the will of the majority—will not achieve true democracy. The second component of democracy is the capacity of the legitimately elected government to carry out its mandated duties on behalf of the citizens and independent of the supervision or interference of any nonelected external organization or individual. The latter may take three forms. The first of these is the legal succession to or illegal usurpation of power by a nonelected dictator. The second is the replacement of the elected government by a military junta, which may hold power over a substantial period of time (here, the author is not referring to exceptional cases in which the army exercises power for a short period as in the case of war, natural disaster, or political crisis). Third is the exercise of national power by a single party in violation of democratic principles, which are exemplified in the following three components: (1) the extensive contribution of party members to the policy-formulation process in order that government policies and strategies are not predominantly determined by a single individual or a limited group within the party; (2) the equal status, participation, electability, and oversight of all eligible parties, both in and out of power; and (3) the respect of the party in power for the national organs of authority, which shall not be overruled or superseded by the party. In the case that one of the aforementioned undemocratic power structures manifests itself in a nation’s power structure, that nation may not be said to conform to the standards of constitutionalism. Since the 1978 Third Plenary Session of the Eleventh Central Committee of the CPC, the party has explicitly denounced and striven to

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weed out personal cults and dictatorial elements in order to democratize party operations. The party has worked conscientiously to improve the relationship of the CPC and existing democratic parties and to extend the independence of these parties while striving to overcome the abuses of power, such as the “blurring of lines between party and government decrees” and “the countermanding of government by Party.” The party is also presently seeking to remedy the improper practice of using the National People’s Congress (NPC) to “rubber stamp” party policy. While these constitute positive steps on the road to reform, much work remains undone in the three aforementioned areas. It is already widely recognized that the key to China’s political reform is the improvement of party leadership through the implementation of democracy, the rule of law, and human rights. The third fundamental component of democracy, regardless of the specific political structure adopted, is the separation and balance of powers in order to prevent the concentration of power in one organ of government, leading to the abuse of power or criminal activities. It is universally acknowledged that unchecked power leads to corruption. Proposed by Locke and developed by Montesquieu (who argued the necessity of three, rather than two, branches of power), the theory of the separation of powers was first successfully applied in the political system of the United States. The US Constitution established a political system at the national level that separated and balanced the powers of the three branches of government (i.e., executive, legislative, and judicial ) while also successfully applying this theory in the separation of federal and state powers. For most Chinese scholars, the theory of the separation of powers specifically relates to the separation of the three branches of the national government. These scholars don’t realize that this theory may also be applied in the relationship between central and local governments; this point deserves further consideration. The advantages of the US Constitution’s successful application of the principle of the separation of powers are threefold: 1. It guarantees the standard operation of a democratic system and prevents the emergence of dictatorship, ensuring long-term political stability. 2. It guarantees the formulation of relatively correct national policies and laws, preventing large-scale mistakes. 3. It activates the initiative and enthusiasm of central and local government departments.

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Since 1978, China has launched several political campaigns criticizing the separation of the three branches of the national government. However, these condemnations were logically unsound. First, some argued that as national sovereignty is unified, it cannot be compartmentalized. Sun Yat-sen, addressing this issue many years ago in his exposition of “the five Constitutional powers,”8 distinguished between the concept of sovereignty and that of the right to govern. Thus, the separation of the powers of government into three branches is the division of the right to govern rather than the fragmentation of sovereignty. Second, there are those who argued that the separation of powers would lead to petty conflicts between the three branches, resulting in an overall lack in government efficiency. In the realms of politics and administration, conflicts do arise at times between democracy and efficiency, and the separation and restriction of powers may impact the speed and efficiency with which policy is formulated. However, the separation of powers prevents dictatorship, guarantees the accuracy of decision making, and inhibits procrastination, resulting in an overall increase in government efficiency. Moreover, constitutions often empower the appropriate authorities to exercise emergency power when the country is in a state of crisis, providing for a temporary rise in government efficiency. Third, there are those would argue that because of differing national conditions, the separation of powers cannot be indiscriminately applied. While this is true, it cannot be denied that political powers must be separated, checked, and regulated; this is the true meaning of democracy. Those who object to a specific model of the separation of powers are merely seeking an excuse to reject the generally logical argument of this theory. Fourth, some claim that the separation of powers is based on a Western, pluralistic model of commodity-based economic development and interests and, as such, is not applicable to socialist countries. Although this argument seems plausible to some extent, it has been demonstrated that a highly centralized, planned economy not only hampers the rapid growth of production but also provides the economic basis for the excessive concentration of political power. China is now transitioning from a planned economy to a market economy, and it is inevitable that, as a result of economic

8 Sun Yat-sen suggested the separation of five powers (legislative power, judicial power, executive power, examination power, and supervisory power), constituting a creative application of the theory of the separation of powers.

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development, both the role of state authorities and the distribution of central and local government powers will be greatly changed. It is thus becoming increasingly urgent to separate, check, and balance the powers of the state. In his well-known conversation with Marshal Montgomery in 1962, Mao Zedong more than once asserted China’s effective handling of the balance between centralization and decentralization. Yet for more than forty years after the founding of the PRC, China has made little significant progress in this area. Although on many occasions China attempted to readjust the balance of power between central and local governments, at times decentralizing and at others recentralizing, the central government still wielded an excessive degree of power with the result being a lack of initiative, resources, enthusiasm, and creativity at the local government level. With the exception of the five national autonomous areas, the Constitution guaranteed the provinces only minimal autonomy,9 and the emphasis on unified policy and unified coordination limited the ability of local authorities to realize the small degree of independence and autonomy provided by the Constitution. This situation did not fundamentally begin to change until the initiation of the transition toward a market economy. In 1988, the First Session of the Seventh NPC passed a resolution to increase the legislative power of Shenzhen. This was a typical example of the way in which the development of a market economy necessitates the expansion of local autonomy. Today, the autonomy of local governments at the provincial, district, and county levels is being rapidly expanded and reinforced, which has, in turn, accelerated economic development and will have a major impact on China’s ability to establish democratic constitutionalism. China is presently in the early stages of expanding local autonomy, and in the years to come, it will need to accumulate greater experience in the development of a market economy before establishing a rational model for the balance of powers between central and local governments. The fourth fundamental component of democracy is the ability of citizens to fully enjoy the rights of information, political participation, political debate, and government oversight. Under a representative Zhang Youyu 张友渔, “Guanyu zhongguo de difang fenquan wenti 关于中国的 地方分权问题 [On the Separation of Power of Local Government in China],” Zhongguo faxue 中国法学 [The Study of Law in China] 2 (1985). In this article, Zhang Youyu briefly introduced and analyzed relevant constitutional provisions. 9

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system of government, these fundamental rights guarantee popular sovereignty. The right to information implies that, excluding classified military and security intelligence security secrets, all political, economic, and cultural activities of the government must be made accessible to the public. Citizens have the right to know every aspect of national circumstances and developments, to understand the processes whereby legislation and policy are formulated, and to be familiar with the standpoints and opinions of their elected representatives on every aspect of state affairs. The right to knowledge is a prerequisite for exercising all other political rights. For the elected to keep “secrets” from the electorate runs counter to the fundamental principles of modern constitutionalism. The right to political participation, beyond the right to vote and stand for election, includes the right to participate directly in the discussion of the formulation and implementation of public policy and national legislation, including the right to contribute to the national dialogue on critical national issues. The right to political debate includes the right of citizens to exercise the freedom of speech and expression on the full range of political issues. The right of government oversight includes the rights of all citizens to criticize, expose, denounce, and accuse government officials at all levels, including those at the highest level of government. In order to further improve the system for safeguarding political rights, China must hasten to formulate a series of laws pertaining to information circulation, assembly, publication, and state compensation, among others, guided by the principle of the protection of rights and freedom, rather than irrationally restrict the exercise of these rights. China must also take concrete, practical measures to ensure that all citizens fully enjoy the aforementioned rights and freedoms. In this regard, China still has a long way to go. 3. The Rule of Law The second universal component of constitutionalism is the rule of law. The rivalry between the rule of law and the rule of leaders has, for several thousand years, existed in both the East and the West.10 10 In ancient China, the Confucianists advocated the rule of the people, while the legalists argued for rule according to law; similarly, in ancient Greece, Plato favored the

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The ancient concept of the rule of law was fundamentally undemocratic: for Aristotle, it excluded all slaves, and for the legalists, it was a mechanism of autocracy. A product of the bourgeois revolution, the modern concept of the rule of law is founded upon democracy and is characterized by the equal rights of all citizens under the law. In its modern sense, the rule of law includes the following fundamental principles. First, a state must formulate a complete set of laws based on a constitution, and these laws must be in accord with the spirit of constitutionalism. Second, all state organizations, parties, and leaders must, in carrying out all appointed duties, adhere strictly to the law. These individuals and organs do not possess the authority to supersede the constitution or the law. Third, the formulation and implementation of the constitution and the law must be carried out in accordance with democratic procedures. Created and enacted in this manner, the constitution and corresponding laws may also be used to fully guarantee the establishment and operation of a democratic system and the protection of human rights. Fourth, all citizens are equal under the law. The law provides equal protection to and punishment for all. Fifth, the judiciary should be independent in order to guarantee the fairness and authority of the law. The rule of law in the modern sense is not only the product of modern civilization but also the product of its expression. Today, the notion of the rule of law is widely accepted among scholars and statespersons, and democracy under the rule of law has become the common ideal of all humanity. Only in a country governed in accordance with the law is political stability continuous and enduring, and only with political stability will economic development continue steadily, social progress persist, justice and equality be firmly established, and human rights be safeguarded. Since the early 1990s, there has been a great deal of debate among Chinese academics on the rule of law versus the rule of leaders. rule of the people, but Aristotle advocated the rule of law. These two historical debates have had a substantial impact on the developments of Chinese and Western civilizations. The debate over the advantages and disadvantages of the rule of law versus the rule of leaders has continued over the course of Eastern and Western history.

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Three views predominate. The “rule of law” group declares the rule of law and the rule of leaders incompatible, promoting the former over the latter. The “combinationist” group argues the equal importance of both models and seeks to integrate the two, and the “abolitionist” faction, viewing the notion of the rule of law as unscientific, argues for its elimination. Although the debate continues, the first of these viewpoints is, at present, the most prevalent. The slogan of “ruling the country in accordance with law” has already been used in a number of important government documents, as well as in the speeches of certain party and government leaders. The development of “a country under the rule of law” has already become one of the major guiding principles in the construction of the Chinese legal system. In the author’s view, the issue of the rule of law versus the rule of leaders is at once extremely complex and relatively simple. For the combinationist, law is inherently inflexible and, therefore, being formulated by men, must be applied by men. In this view, the law is as a weapon, which must be wielded by a soldier in order to be effective in battle. However, this line of argument, in focusing on the comparative utility of law and man, entirely misses the fundamental implications of these two models, which have, throughout history, been pitted against one another as diametrical opponents. The conflict between the two, and the debate that defines it, centers on two basic issues. First, with regard to these two as theories of governance, proponents of the rule of law hold that a nation’s enduring growth and prosperity, order, and stability depend upon the establishment of law and the institutions necessary to uphold and enforce it, as opposed to the wisdom of one or two leaders. Advocates of the rule of leaders, in contrast, argue that the government depends on men; the vicissitudes of politics follows the rise and fall of great leaders. This conflict was manifested in Western history in the conflicting views of Plato, who advocated the rule of men, and Aristotle, who stressed the import of institutions; in the East, this debate was embodied in the legalist promotion of the rule of law as opposed to Confucius’ advocacy of rule by sages.11 Li Buyun 李步云, “Fazhi yu renzhi de genben duili 法治与人治的根本对立 [The Antithesis between Rule of Law and Rule of Leaders),” in Fa zhi minzhu yu ziyou 法治、民主、自由 [Legality, Democracy, and Freedom] (Chengdu: Sichuan People’s Publishing House), 121–138. 11

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Second, when discussing the two as principles of state administration, proponents of the rule of law argue for the absolute authority of the law and require all government leaders and organizations to act in accordance with the law. Conversely, advocates of the rule of leaders emphasize the authority of leaders, arguing that the authority to govern a country derives from its leaders. The mounting support for the doctrine of the rule of law in China has practical significance. Both government leaders and the masses have long held the belief that placing the fate of the country in the hands of a few good leaders at the expense of the establishment of democracy and the rule of law inevitably leads to various political abuses, evinced in the failure to use legal and systematic measures to prevent the occurrence of the Cultural Revolution. It is now widely recognized that when law is not respected and blind faith is placed in leaders, power overwhelms law, and serious problems result. However, through advocating the rule of law in opposition to the rule of leaders, these problems are eliminated. Thus, we see the advantage of the rule of law over the combinationist approach. The abolitionists lack a true understanding of the content and significance of the rule of law. They argue that law is inherently rigid and, as such, cannot constitute the foundation for governing an organic country, suggesting that if in its inflexibility law is still considered a sound basis for government, then “rule by party” or “rule by education” are equally viable models of governance. It is, of course, a given that party and education play substantial roles in the management of state affairs. Thus, these arguments, in missing the true meaning of the rule of law, constitute mere games of rhetoric.12 China has already made considerable progress toward developing a theoretical basis for the establishment of the rule of law. However, China must now undertake the establishment of a fundamental system for the effective implementation of the rule of law. In this area, China still has quite a distance to go. Fundamental to the realization of the rule of law is maintaining the paramount authority of the law. Many conditions must be established in order for this to be achieved, but the most fundamental of these

12 Li Buyun 李步云, “Fazhi gainian de kexuexing 法制概念的科学性 [The Scientific Conception of Rule by Law],” in Fa zhi minzhu yu ziyou 法制民主与自由 [Legality, Democracy, and Freedom] (Chengdu: Sichuan People’s Publishing House), 139–155.

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is the formation of an effective political system. Based on the experiences of Western nations, it is apparent that critical to the realization of the rule of law is a mechanism of constitutional oversight. While an essential component of a system of constitutional oversight is judicial review, such a system ought also to include mechanisms for the impeachment of government leaders and citizens’ representatives, as well as the powers to interpret the constitution and protect the rights of citizens, and so forth. The structural formats employed in the enactment of constitutional supervision vary from country to country. In the United States, for instance, the Supreme Court is charged with the task of constitutional review; Germany has a constitutional court, while France has a constitutional committee. While the specific functions and procedural systems of these may differ, they share several fundamental features: each of these is an independent organ of government established for the sole purpose of carrying out constitutional review according to clearly defined operational and legal procedures and with established functions and authority. According to Article 67 of the 1982 Constitution, the NPC and its standing committee should “supervise the execution of the Constitution.” However, due to the absence of an independent organ or clearly defined procedures for this purpose, this article lacks practical meaning. Not only has the NPC’s standing committee failed to review a single alleged violation of the Constitution since its adoption, but it has yet to perform any of the functions required for constitutional supervision. Since the drafting of the current Constitution, numerous scholars and NPC representatives have advocated the establishment of a specialized organ of constitutional review, but a number of factors have prevented the resolution of this issue. Over a decade has been wasted since the promulgation of the 1982 Constitution without any progress being made; this is clearly an unacceptable state of affairs. In recent years, certain relevant government departments have undertaken reform of the law concerning the NPC and its standing committee’s oversight of the Constitution, working to establish a specialized mechanism of constitutional oversight and define its functions and procedures. The formulation of this legislation has proceeded with great difficulty. While identifying an appropriate model of constitutional oversight may be accomplished with relative ease, it remains to be seen whether or not the relevant authorities will be willing to empower this organ of oversight with the necessary authority to perform its functions effectively.

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Of some contention is the issue of whether or not the Central Military Committee should be subject to the oversight of the NPC and its standing committee. According to the Constitution, the Central Military Committee, as part of the state apparatus, falls under the leadership of the NPC and its standing committee and must report regularly to these two bodies on the status of its work; however, since the inception of the current Constitution, it has not once done so. While certain classified intelligence may be excluded from this requirement, the majority of military affairs should be reported to the organs of national authority. Through the regular reports of the chairman of the Central Military Committee (previously Deng Xiaoping and currently Jiang Zemin), the constitutionally defined authority of the NPC would be reinforced. Another controversial issue concerns the extent to which the party should be supervised by the NPC and its standing committee. In Article 5 of the 1982 Constitution, it is stated that all State organizations and the armed forces, all parties and social organizations, and all enterprises and institutions shall abide by the Constitution and the law, and all violations thereof shall be investigated.

Here, “all parties” clearly includes the CPC. With changing national conditions and increasing knowledge and perspicacity, the party formulates and implements new policies. However, before these policies can be enforced, they should first, through a rigorous and comprehensive democratic process, be transformed into government policy or amended and reformulated. The party may not, for the sake of promoting its own policy, disregard the current policy or law, for this would constitute a violation of the Constitution. The restriction of certain aspects of the party’s authority through the establishment of an organ of constitutional oversight, rather than being avoided, should be embraced as necessary and beneficial. Another critical component of the rule of law is the independence of the judiciary, which also constitutes an important aspect of the implementation of checks and balances. It is imperative that justice and the authority of law be guaranteed, the integrity of the legal system be upheld, and democracy and human rights be preserved. Despite significant progress, a number of obstacles still stand in the way of judicial independence. First, the legislation on judicial independence is still incomplete, with the 1975 and 1978 constitutions lacking specific articles on judicial independence. While relevant articles in the 1982 Constitution

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represent a certain degree of progress, several of these articles are themselves problematic: Article 126 states that the people’s courts exercise independent judicial authority as stipulated by the law and therefore shall not be subject to the intervention of executive organizations, social groups, and individuals.

Does this then mean that legislative organizations and the organizations of the Communist Party may intervene in the proceedings of the courts? This, of course, would be unacceptable, for intervention has a derogatory connotation as opposed to the notion of guidance, which is decidedly positive. While legislative organs and the party in power may “guide” an organ of the judiciary, it may never “interfere” in the exercise of its independent authority. When the “counter-revolutionary groups of Lin Biao and Jiang Qing” were brought to trial in 1980, the Standing Committee of the NPC merely approved the establishment of a “special court” and a “special procurator,” while conviction and sentencing was carried out by the “special procurator.” Thus, this article of the Constitution should be revised; it may, in fact, be appropriate to reinstate an article from the 1954 Constitution, which stated that the “People’s Court exercises independent judicial authority and is subject to the law alone.” Second, closely linked to the Constitutional provisions on independent judicial authority is the system whereby, in specific cases, the local party committee exercises judicial authority. This system must be eradicated.13 In September 1979, the Central Committee of the CPC decreed the eradication of this system. However, following the

13 The examination, as well as the approval, of individual cases by the local party committee has been systematically carried out for some time. Although the origin of this system has yet to be clarified, the process is as follows: only after an arrest is reported to and approved by the party committee at the relevant level may these be carried out by the procuratorial organs; the trial and sentencing of an offender may only be enacted after the local party committee has approved the verdict. The party’s authorization may take one of two major forms: “examine first and then approve,” or “approve first and then examine.” In the first case, the court investigates, interrogates, and then proposes a penalty. After the local party committee at the same level examines and approves the case, the court makes its final ruling. In the second instance, after a general investigation is carried out by the court, the case is submitted to the local party committee for discussion. Only after the party committee has determined an appropriate sentence may the court carry out the formalities of a trial. Because the party committee must discuss and handle all affairs, some cases are determined exclusively by the secretariat of the party committee, which is in charge of political and legal affairs.

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adoption of policy aimed at punishing crimes efficiently and effectively, the system was partially reinstated. Nonetheless, even when the courts, the procuratorates, and the public security bureaus are unable to reach a decision on a particularly controversial case, the local party committee and the Committee on Political and Legal Affairs must not intervene in these proceedings.14 It is, in fact, entirely appropriate that divergences of opinion should arise between these three bodies over the course of reviewing a case; otherwise, it would be unnecessary for separations in function and restrictions of power to be enforced. Moreover, the law clearly outlines detailed procedures for the handling of conflicts in judicial proceedings. The independent authority of the courts derives from the Constitution. If in certain cases the local party committee or the Committee on Political and Legal Affairs hands down the final verdict and sentence, then it would seem there exists a “judicial body” of greater authority than the constitutionally defined judiciary, constituting a violation of the Constitution. Third, administrative procedural standards should not apply to the work of the courts. For instance, in the past, the chief justice of a court was responsible for examining and approving individual cases.15 However, based on the recommendations of scholars, the Supreme Court has since eliminated this practice. In recent years, a new system of “requesting instruction” has emerged in which lower level courts often request the advice of higher level courts before reaching a verdict on a particularly controversial case. This is clearly problematic in that, once the higher court has made its recommendation, the appeal process is rendered a mere formality.

14 The Committee of Political and Legal Affairs is an organization within the local party committee. It comprises leaders responsible for local political and legal affairs, as well as leaders from the court, procuratorate, justice, public security, and civil administration departments. The committee is primarily concerned with the coordination and administration of important issues at the local level. Of course, the committee has the right to examine and approve any case. 15 It is still unclear when the system of the examination and approval of cases by the Chief Justice of the court was established. However, the system implies that the court must submit all proposed sentences to its chief justice for approval before a final sentence may be handed out. The chief justice of the court may make amendments to the case and its proceedings at will. See Liu Chunmao 刘春茂, “Duifayuanyuanzhang, tingzhangs shenpi anjian zhidu de shentao 对法院院长、庭长审批案件制度的探讨 [Inquiry into the System of the Chief Justice’s Examination and Approval of Cases],” Law Magazine 2 (1980). This article recommended the termination of the system.

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A fundamental problem in realizing the rule of law in a one-party state, be it in the East or the West, is the correct handling of the relationship between party policy and state law as it applies to legislation, judicial proceedings, and governmental administration. The views of Chinese scholars differ significantly on this problem. The following three issues require resolution. First, certain scholars argue that Party policy is the soul of the law, and law is a tool for the formulation of Party policy. Textbooks compiled by the Ministry of Education, as well as a number of independent works on jurisprudence, maintain this viewpoint. The author does not agree with this viewpoint,16 insisting rather that both law and party policy should reflect the will and aspirations of the citizenry, safeguard their interests, and satisfy their demands, while also embodying the principle of social progress and the spirit of the modern era and contributing to material and spiritual development. For if party policy is the soul of the law, what is the soul of party policy? Will not flaws in party policy (which history has proven are sometimes inevitable) carry over into and impact the efficacy of law? In is undeniable that party policy will affect the formulation of state law to some extent. However, nonparty members within the legislature also hold the right to criticize, reject, or revise the policies of the party in power. This is a fundamental requirement of modern democracy. The argument for the law as a tool for implementing party policy inverts the proper relationship between the two. To view state law as the tool of party policy is to make the state itself an instrument of party power. While the party in power may play a significant role in national political life, it can never supplant the organs of state power. The party in power serves the country; the country does not serve the party. Second, when conflicts arise between party policy and state law, which should prevail? With regard to this issue, Chinese scholars hold three differing views. The first claims the supremacy of party policy, the second favors the primacy of law, and the third argues that this should be determined on a case-by-case basis. The author advocates the second solution.

16 See Li Buyun 李步云, “Zengce yu falv 政策与法律 [Policy and Law],” in Fa zhi minzhu yu ziyou 法治、民主、自由 [Legality, Democracy, and Freedom] (Chengdu: Sichuan People’s Publishing House), 62–65.

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The argument for the priority of party policy is based on the claim that policy is the spirit of law, and law is the tool of party policy, a notion that has already been disproven here. This argument further continues that while law is consistently stable, party policy may change as necessary to reflect the evolving demands of society. This line of argument, however, fails to recognize that party policy is a mere embodiment of the position of the party in power and, as such, applies only to the members of the party. Only state law applies universally to all citizens. The transformation of party policy into state law requires rigorous and comprehensive legislative procedures. Thus, it is seen that state law holds greater authority and legitimacy than party policy. In a modern democracy, the party in power may formulate new policies to suit changing national conditions; however, these policies may not supplant state law. Rather, party platforms may be reflected in the formulation and revision of state law. The third standpoint is self-evidently problematic, for to determine the correct order of the authority of state law and party policy on an individual basis would merely result in greater confusion. Third, party policy and state law should be strictly segregated. Past tendencies to blur the line between the two were inappropriate, for both theoretically and practically, only through democratic procedures should party policy become state law. The implementation of such democratic procedures will advance the democratization of national politics.17 4. Human Rights The third fundamental component of constitutionalism is the full guarantee of human rights. As they relate to human rights, democracy and the rule of law constitute the means for realizing the end, which is human rights. Democracy and the rule of law here, however, are not just the means to this end, but are also ends in themselves. Democracy as a means to the end of guaranteeing human rights includes democratic systems, procedures, and operations; as the umbrella term for

See Li Buyun, “Zengce yu falv.” It is additionally worth mentioning that party and state organizations may no longer jointly issue general documents. This is a clear manifestation of the disadvantage of the absence of a distinction between the party and the government. 17

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the various political rights of the citizenry, however, democracy is in and of itself a goal. Similarly, the rule of law may be seen as both a means and an ideal end. As a principle and method of political administration, the rule of law is a means; at the same time, law embodies justice, and justice is an ideal sought constantly by all people. Thus, the rule of law may also be seen as an end. Human rights, however, differs from democracy and the rule of law in that it is always an end—never a means. This is because the full enjoyment of human rights embodies the greatest material and spiritual needs of humanity and encompasses the highest and ultimate values of humankind. A modern constitution has two fundamental components and functions. The first of these concerns rights. Enumerating the various individual, political, economic, social, and cultural rights and freedoms of the citizenry, a constitution resolves the practical issues relating to the guarantee of citizens’ rights. The second of these concerns state power, or more specifically, the creation, composition, authority, procedures, and relationships of state power organs. Power, however, is not in and of itself a goal, for the ultimate purpose of defining state power is to preserve rights. While a constitution clearly defines the power of state organs and their leaders, this power is, in fact, exercised on behalf of the citizenry in order that public “servants” may provide effective service to their “masters” (the people) for the purpose of guaranteeing their rights. There are those who argue that, at present, China’s greatest priority is economic advancement and, resultantly, that the core objective of the Constitution should be the development of the national economy rather than the protection of human rights. In actuality, no contradiction exists, because, while economic development should rightly be prioritized, it is not the ultimate goal. Economic advancement is for the purpose of improving the standard of living of the citizenry and to create the economic conditions necessary for development in other areas. Most fundamentally, the goal of economic advancement is the fulfillment, protection, and guarantee of citizens’ economic as well as other rights. The notion of human rights is multidimensional. A white paper issued by the State Council describes human rights as embracing an extensive spectrum of rights, the most fundamental of which is the right to survival. Economic development serves to guarantee that the right to survival is upheld by improving the quality of citizens’ lives. It is, therefore, appropriate to include the safeguarding of human

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rights as not only a fundamental component but also the goal of constitutionalism. The guarantee of human rights must be firmly established upon a sound theoretical foundation; in order for China to create this necessary theoretical basis, three theoretical issues must first be resolved. First, what is the source of human rights? In the author’s view, human rights are those rights enjoyed by all human beings on account of their innate qualities and social character, or in other words, human rights are determined by the inherent qualities we possess as human beings. On the one hand, human rights originate in human nature, as in the case of the rights to life, security, freedom of thought, personal freedom, and the pursuit of happiness, whereby human beings seek to satisfy the basic need for personal freedom and material and spiritual satisfaction. On the other hand, human rights originate socially, as a result of our social ties and interactions, for increasing degrees of social, political, economic, and cultural development together with the nature and condition of various social interactions greatly impact the continuation and development of human rights. It is important to recognize both the inherently human and socially derived origins of human rights. A theory that focuses exclusively—as do those of some Chinese scholars—on the fundamental social nature of humankind as the source of rights, views human beings as social creatures, disregarding the innate desires, needs, ideals, and moral character of all human beings and, in so doing, leaves the questions of the origins and meaning of human rights unaddressed. The claim that human rights are socially motivated deprives people of a powerful weapon in the struggle for equal human rights. If we recognize only the social nature of human beings and reject the notion that humans are endowed with innately human qualities, we exclude the study of humanity itself and, as a result, lose a clear and correct focus and goal for the protection of human rights and exaggerate the significance and impact of social conditions in the preservation of human rights. However, if we only admit the inherent qualities at the expense of the social character of humankind, as the theory of natural rights suggests, we ignore the importance of the reform of social systems and the development of economic, political, and cultural conditions to the protection of human rights. The second theoretical issue fundamental to human rights is the relationship of political rights and economic, social, and cultural rights; this is a point of great contention between developed and developing

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nations. Developed countries have repeatedly condemned the failure of developing countries to adequately protect the political rights of their citizens, to which developing countries have responded that political rights, such as the freedom of speech, are meaningless to a person on the brink of starvation. Developing nations critique the unfair emphasis of developed countries on political rights, while developed countries argue that life is of little meaning without the guarantee of political rights. In the author’s opinion, generally speaking, economic rights outweigh all other rights, because in order to engage in political, social, and cultural activities, humans must first be fed and clothed. However, given the high degree of the material and spiritual development of modern civilization, the focus on fulfilling the right of survival is clearly inadequate. In the author’s view, nations must treat these two categories of human rights equally. In actuality, contemporary international human rights documents increasingly stress the interdependence and inseparability of these two kinds of rights. National strategies for the development of human rights will vary with national conditions. Every nation must prioritize the development of rights and strive to overcome biases that arise from past efforts to develop these two types of human rights. In China’s case, this means correcting the tendency to overemphasize economic rights. In principle, as a developing country, China’s prioritization of economic advancement while adopting a strategy of simultaneously pursuing economic and political development seems appropriate. However, in practice, China, like other socialist countries, has persistently emphasized economic rights at the expense of political rights. This practice led to such historical tragedies as the Cultural Revolution. It is for this very reason that Chinese citizens today increasingly insist upon the acceleration of political reform and demand more effective guarantees of their political rights and freedoms. The third theoretical issue to be resolved in relation to human rights is the relationship between individual and collective rights. This issue, to a certain extent, relates to the previously discussed theoretical questions, for there are those scholars who equate political rights with individual rights and economic rights with collective rights. However, both individual and collective rights cannot be thus limited. Domestically, collective rights include the rights of minorities, women, children, and the disabled, and internationally, the rights of self-determination and the rights to development. Rather than being diametrically

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opposed, individual and collective rights are unified and cannot, in fact, be separated, for individual rights provide the foundation for collective rights, because the collective is comprised by individuals. Unless individuals ultimately benefit, collective rights lose all meaning and existential value. Thus, the protection of human rights should be founded upon the protection of individual rights. Western countries have long emphasized individual rights at the expense of collective rights, and as a result, are now confronting the issue of “social harmony,” as evinced by the growing income disparity, racial discrimination, and the inequality of the sexes. Socialist countries, in contrast, have always emphasized national interests and collective rights over individual rights. The resolution of this problem is critical to upholding the reputation of socialism. In the modern era, all nations face these kinds of challenges, whether big or small. There are those who refuse to recognize that China, too, must tackle the issue of individual rights; such a viewpoint is one-sided and dangerous. In the author’s opinion, three steps must be taken in order to gradually improve the condition of China’s human rights. First, we must recognize the protection of human rights as a fundamental task. While the study of theories on human rights is necessary, the primary purpose of this study must be the practical advancement of the protection of human rights. While it is necessary to publicize China’s achievements, these will only be significant if China actually guarantees human rights. Propaganda must acknowledge success as well as failure. The issue of human rights has both domestic and international implications. Progress cannot be made on the international stage unless domestic matters are well-managed. We should not only protect a state’s right to national sovereignty and freedom from external interference in domestic affairs, but also enthusiastically support and participate in international efforts to protect human rights, while accepting reasonable and legitimate international criticism and oversight. It would be incorrect and injurious to confine Marxist human rights theory to opposing the Western “human rights offensive” and criticizing domestic liberalist ideology. Such an approach is not only inaccurate, but ultimately, harmful. Second, we must understand and analyze the objective and subjective conditions necessary for the realization of human rights in order to accelerate the construction of a system for safeguarding rights. The following four factors may be seen as the primary sources of the severe violations of human rights during the ten years of the Cultural

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Revolution (1966–1976) and the persistence of various human rights issues today: the serious defects of the planned economic system; the insufficient development of democracy and the rule of law; the inadequate awareness of the general public, and particularly some leaders, of human rights; and the relatively low levels of social, economic, and cultural development. These fundamental conditions must be addressed in order for China to successfully promote human rights. While pursuing continued market economy development, China must simultaneously strengthen democracy and the rule of law and establish effective mechanisms for the protection of human rights. Not to do so would be impermissible. The realization of the majority of human rights, including human dignity, political rights, and economic rights, is not directly dictated by economic and cultural development. Thus, it would be unacceptable to merely emphasize the need for economic and cultural development without specifically addressing the issue of human rights. Third, in improving mechanisms for safeguarding human rights in China, we must draw upon and incorporate the valuable experiences of other countries. As the common goal of all of humanity, the realization of human rights, both in theory and practice, is the mutual achievement of humanity’s struggle. In establishing institutions for safeguarding human rights, China cannot merely replicate the models of foreign countries. However, certain universally applicable theoretical and procedural components should be adopted and integrated. As a fundamental component of constitutionalism, the full realization of human rights requires that every country formulate comprehensive legislation recognizing and safeguarding human rights. Although China has made some progress on this front, a great deal of work remains to be done. Many of the fundamental human rights stipulated in the Constitution have yet to be specifically addressed in common law or, having been formulated, have not been promulgated; included among these are laws concerning information, the press, assembly, religion, the equal rights of minorities, the rights of senior citizens, labor, family planning, and state compensation, as well as those relating to the oversight of the NPC, lawyers, justices, and public prosecutors. In addition to these, a number of existent laws closely related to the preservation of human rights urgently require amendment; these include laws relating to crime, criminal rehabilitation, civil actions, and marriage. Not only is it necessary to improve laws relating to human rights, but in

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the formulation and implementation of these laws, it is also necessary to appropriately delineate the line between the restriction and protection of rights, for though rights are not absolute, any limitations placed upon them must ultimately aim to improve human rights. Some years ago, legislation was drafted concerning the rights of citizens to demonstrate, which contained so many inappropriate restrictions that it was criticized by some as a law forbidding demonstrations. The formulation of a great deal of necessary legislation has been delayed due to continuing controversy, arising from conservative ideology, over the proper boundaries between rights and restrictions. The full realization of human rights also requires the guarantee of a comprehensive judicial system. Three major problems must first be resolved. First, it is necessary to balance the priorities of maintaining social stability and protecting individual rights, particularly with regard to the handling of criminal cases. In the past, China has unduly emphasized social stability, focusing on collective rights at the expense of individual rights. Second, the protection of human rights should be the central motivation of all judicial work, and inhumane practices must be eradicated; more specifically, the presumption that an individual is innocent until proven guilty must guide criminal proceedings. Rather than “absolving criminals from guilt,” such an approach guarantees the effective implementation of the law. In accordance with international trends, the death penalty should be imposed with decreasing frequency, and a comprehensive approach to reducing crime should be adopted. Third, the detention and interrogation (收容审查) system should be abolished as soon as possible. According to Article 37 of the current Constitution, The individual freedom of the citizens of the People’s Republic of China shall not be violated. No citizen shall be imprisoned unless otherwise approved by the People’s Procuratorate, determined by the People’s Court, or enacted by the Public Security Bureau.

While detention and interrogation does not constitute formal arrest, it places equal restrictions on personal security and freedom, both of which are fundamental human rights, and laws restricting personal freedom may only be formulated by the NPC and its standing committee. This power belongs neither to the Ministry of Public Security nor to the State Council, which may only issue administrative regulations

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limiting citizens’ freedom and security under the authority of the legislative organs of government. The NPC and its standing committee never have, and never will, authorize such violations of rights.18 In the realm of international human rights, constitutionalism requires that individual states contribute to and participate in the international protection of and cooperation on human rights. National sovereignty and the protection of human rights are fundamental principles of international law and, as such, must be integrated and balanced. In the case that a conflict does arise, these should be resolved on an individual basis. Issues of domestic human rights should be handled internally without the interference of the international community or individual countries and with respect for national sovereignty, which, in such cases, takes precedence. However, when human rights issues threaten global peace and security, the international community must act. When a state violates international human rights treaties to which it is party, the United Nations, as well as other states who have signed the treaty, may rightfully intervene, and in these cases, human rights take precedence over national sovereignty; in the modern era, the notion of absolute national sovereignty is no longer recognized. There are those in the West who argue that human rights are boundless, to which some in China respond that human rights are domestic affairs; both of these are equally erroneous, for as demonstrated here, in some instances human rights are restricted (as in the case where national sovereignty precludes the interference of the international community), and in others (when international peace and stability are threatened) they are not. In both cases, the “common standard” of international human rights must be recognized and upheld by every nation. This standard is the expression of the universality of human rights and the reason that countries have voluntarily signed and contributed to international human rights agreements and joint efforts in the protection of international human rights. Every nation should

18 According to circulars issued by the State Council (February 29, 1980) and the Ministry of Public Security ( July 31, 1985; July 31, 1986), respectively, the subjects of the policy of detention and interrogation include those who are suspected of financing criminal activities and those of questionable backgrounds who, having committed a crime, refuse to reveal their true identity. The time frame within which the detention and interrogation policy operates is generally one month; however, at the provincial level, this may be extended to three months and, in actual practice, often exceeds both of these time limits.

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respect the provisions of the Universal Declaration of Human Rights. However, with regard to certain aspects of human rights, differing national conditions will result in varying standards of rights. Human rights, while possessing a political component, are not entirely political in nature. It is impossible to entirely separate international human rights and national foreign policy. Nonetheless, most issues of human rights should be approached from the standpoint of safeguarding the common interests of humanity and respecting common moral principles, and these must not be superseded by national interests. The international community has, for example, acted jointly in imposing sanctions on nations, such as South Africa, Israel, and Iraq—which have perpetrated severe violations of human rights—as well as taken measures to protect the fundamental human rights of the disadvantaged and abused (e.g., refugees, citizens without states, and the disabled). In all of these cases, national politics and ideology were put aside for the sake of defending basic human rights. In dealing with matters relating to international human rights, a country should neither adopt a “double standard” nor prioritize its own national agenda or ideology, both of which constitute the “politicization” or “ideologization” of human rights, which China has condemned, not in relation to any individual country but, rather, as a general principle. As one of the permanent members of the United Nations Security Council, China has a great responsibility to contribute to the defense of international human rights. China must act immediately to sign the two international covenants on human rights—the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights—which have already been signed by 110 countries. All of the great powers have signed both treaties, with the exception of the United States, which did not sign the International Covenant on Economic, Social, and Cultural Rights. It is apparent that this global trend is reflective of the will of the people. With regard to human rights legislation, China currently falls short of the standards required by these two covenants.19 However, this may be The present disparity between Chinese legislation on human rights and the international covenants relates to the following issues. First, according to Article 2 of the International Covenant on Civil and Political Rights, “dissidents” must be granted equal rights; current China legislation does not include such a provision. Articles 2, 9, and 14 maintain the right to obtain relief, butcivil rights China laws on state reparations do not currently exist. Article 6 states that criminals under the age of 19

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resolved through the improvement of legislation. China may independently interpret or express reservations regarding individual articles. Signing these two international covenants will be of great use in establishing human rights domestically, as well as in significantly improving China’s international image. 5. Future Prospects Since the founding of the PRC in 1949, great strides have been made toward establishing constitutionalism; when compared with the progress made under the rule of the Guomindang, this progress is truly remarkable. However, to this day, constitutionalism has not been implemented, and as a result, China has yet to meet the requirements and standards of modern constitutionalism. Government and party leaders are not oblivious to the various challenges facing modern China in relation to democracy, the rule of law, and human rights. With regard to democracy, both the prefaces of the current Constitution and the CPC Charter declare as their objective the development of a high degree of social democracy; however, this end will only be achieved through a long period of struggle. The resolutions of the Thirteenth Party Congress and the Fourteenth Party Congress also acknowledge this problem. The rule of law was touched upon by Peng Zhen, the former chairman of the Standing Committee of the NPC, in a talk given to senior leaders of the People’s Daily prior to the ratification of the new Constitution, suggesting that China must “transition from the rule of leaders to the rule of law.” As for human rights, the general

eighteen may not receive the death penalty. China’s criminal code stipulates that serious offenders over the age of sixteen may be sentenced to death. According to Article 9, a person may not be detained without due process. China’s detention and interrogation system obviously fails to meet this standard. Article 12 concerns the freedom of mobility, or the freedom of all people to travel outside of and return to their country of citizenship. China lacks such a provision. Article 14 prevents a defendant from being compelled to confess or admit guilt. China continues to implement a policy of leniency to those who confess their crimes and severity to those who refuse. Article 22 guarantees the freedom of association. China’s Law of Association is still in the process of being drafted; for China, this is a difficult issue. Article 6 of the International Covenant on Economic, Social, and Cultural Rights affirms that people have the right to select or accept jobs freely. However, Chinese citizens do not presently possess the freedom of occupation. Article 8 guarantees the right to organize and join a labor union; in China, only one labor union is permitted. Article 8 also provides the right to strike, a right that has already been abolished in China.

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secretary of the CPC, Jiang Zemin, has stated that “China will achieve higher and more extensive human rights with the advancement of modernization.” All of these statements indicate that China has not yet achieved constitutional rule, but rather that constitutionalism is an ideal to be realized. Some may ask that if China is not practicing constitutionalism, then under what system is China presently being governed. We answer that China is presently progressing toward constitutionalism. The purpose of studying the concept, fundamental components, and specific aspects of constitutionalism is to seek a clear goal and course for China’s systematic political reform. With regard to how we should evaluate China’s future prospects for the realization of constitutionalism, there are two differing camps: the “optimists” and the “pessimists.” The author counts himself among the former for the following four reasons. First, China is unrelentingly pursuing the establishment of a market economy; in fact, this developmental trend is inevitable. While incompatible with a planned economy, democracy, the rule of law, and human rights are closely linked to the model of the market economy. A cardinal principle of Marxism is the power of economics to determine politics; thus, China’s market economy will ultimately determine China’s potential for establishing constitutionalism. Second, the realization of democracy, the establishment of the rule of law, and the protection of human rights constitute the fundamental aspiration of 1.1 billion Chinese people, for these are rooted in human nature. The Chinese people have, through the positive and negative experiences of the past forty years of China’s constitutional development, cultivated increasingly greater degrees of awareness of the principles of democracy, the rule of law, and human rights. Chinese leaders must, from this point forward, acknowledge and respect this aspiration. Third, with regard to China’s leaders, while in the past the personal wisdom and reputation of leaders were emphasized as a result of historical conditions, China’s current generation of leaders, being younger and possessing higher degrees of education, tend toward collective leadership, democracy, and the rule of law. Fourth, current global trends support constitutionalism. These include the rapid development of science and technology, the improvement of material and spiritual culture, and the trend toward global integration, resulting in increasingly greater degrees of economic,

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political, and cultural interdependence, influence, and cooperation among nations. Under these historical circumstances, it is impossible for a country to remain isolated. China, too, must pursue this common course of global development, providing the international conditions for the establishment of constitutionalism. Here, let us examine more closely the relationship between market economics and constitutionalism. The transition from a centrally planned economy to a market economy is characterized in four major political and legal changes. First, under a planned economy, the government pervaded every aspect of society, and state interests were prioritized at the expense of individual rights. Personal freedoms, as well as individual ingenuity, passion, and creativity, were restricted. Under a market economy, the government and enterprise are necessarily separate, and the functions of government are reduced. The government concentrates on service rather than management, and the extent to which the government may interfere in society is limited. Individual rights are respected, and citizens enjoy greater freedom. Individual potential is given free rein to develop. Overall, the transformation of the function of the state leads to an adjustment in the status, role, and relationship of government and citizen, which benefits, both theoretically and practically, the fundamental transition toward democracy, the rule of law, and human rights. Second, a high degree of centralized economic power in the planned economy produced a high degree of centralized political power. Power rested in the hands of a few party and government leaders at each level of government, and highly centralized state power resulted in relatively weak local government. Contrastingly, under a market economy, government organizations, schools, factories, and research institutes have greater independence, and any decisions made by individuals are more democratic and scientific. At the same time, with the expansion of local economic autonomy, local authorities possess greater political autonomy, and political rights. These changes will greatly strengthen political democracy. Third, the planned economy was based primarily upon administrative modes and methods of governance. However, governance in a market economy is legally founded, for it is the economy of the rule of law and, as such, provides the economic conditions necessary for the transition from the rule of leaders to the rule of law. Fourth, embodying the fundamental principles of freedom, equality, and humanitarianism, modern human rights go hand in hand with a

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capitalist commodity economy. The production and exchange of commodities is the free exchange of equal objects at equal value. Thus, the conditions of a commodity economy inevitably increase individual freedom and social equality, laying the ideological foundation for the realization of human rights. At present, developing countries around the world are confronting the problem of simultaneously implementing market economics and democratic constitutionalism. In reality, these two are inextricably linked. In China, with the gradual establishment of a market economy, notions of democracy, the rule of law, and human rights have quietly begun to change; this change is particularly apparent in more prosperous areas such as Shenzhen and Hainan. Among the pessimists are the advocates of “new authoritarianism.” While most do not genuinely believe new authoritarianism to be superior to constitutionalism, they underestimate the desire of the people for democracy and equality and lack a full understanding of the practical impact of a market economy on constitutionalism. Through historical experiences such as the Cultural Revolution, the Chinese people have developed a “democratic character” and, as a result, possess tremendous political potential. Thus, the new authoritarians’ assumption that democracy only leads to chaos is inaccurate. Their static analysis of the economic experiences of the “Four Little Dragons” of East Asia fails to recognize the dynamic possibilities for change. Furthermore, the new authoritarian relies on a few “outstanding leaders” as opposed to a good system. Recently promulgated government documents and propaganda emphasize the construction of political democracy, simultaneous political and economic reform, and the transition from the rule of leaders to constitutionalism. However, with its focus on the power of individual leaders, new authoritarianism limits the future progress of political democracy. All nations, including China, must inevitably trend toward constitutionalism, for it is deeply rooted in human nature. But just as the economic, political, and social conditions, as well as historical traditions, of individual countries vary, so, too, will the specific courses toward and characteristics of constitutionalism differ from country to country. In the author’s view, the future development of constitutionalism in China should take into account the following characteristics in order that they may be correctly managed. First, China’s traditional culture, established over several thousand years of history, will both positively and negatively impact China’s advancement toward constitutionalism. Among the positive influences

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are the notion of people as fundamental forces in historical development, the notion of social cohesion, the ideal of the perfect society—or “Great Harmony” (大同)—and so forth, all of which are deeply rooted in Chinese traditions. Negative factors include the tendencies toward absolutism, patriarchy, elitism, hierarchical thinking, and the neglect of human and individual rights and freedoms. Thus, it is seen that the negative characteristics outweigh the positive, and in this respect, Chinese historical and traditional conditions differ greatly from those of the West. In Western history, the commodity economy emerged earlier, and with it, emerged the emphasis on the rights of the individual. Thus, in advancing Chinese constitutionalism, we must maintain those aspects of traditional culture that promote democracy and humanitarianism, while eliminating those elements of traditional culture that are incompatible with modern democracy, human rights, and the rule of law. Second, in implementing socialism, states have emphasized collectivism, which, while advancing the interests of the proletariat, has also contributed to world progress. However, in so doing, individual rights and freedoms were neglected, which, in turn, had a negative impact on individual initiative, enthusiasm, and creativity. However, fundamental to the establishment of socialist constitutionalism is the guarantee of individual rights, particularly political rights. Conversely, over the course of three hundred years of material and spiritual development, Western countries, to a great extent, emphasized and protected the rights of individuals and now face the major challenge of maintaining social harmony. Third, conflicts may at times arise between the principles of freedom and equality, both fundamental to constitutionalism (e.g., in the case of fairness and efficiency). In the past, Chinese ideology, policy, and institutions overemphasized equality. As a result, China now confronts the challenge of overcoming institutional egalitarianism, particularly in economic institutions, in order to expand freedom and unfetter local governments, enterprises, and individuals, which, in turn, will result in the increased resourcefulness of the masses, improved overall efficiency, and greater material and spiritual wealth. Only in this way will we free ourselves from poverty and backwardness and advance toward common prosperity. Thus, in a conflict of the values between freedom and equality, China should orient itself toward freedom. Western nations, contrarily, should prioritize equality, for the West has long emphasized freedom at the expense of equality (though a number of

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exceptions, including Sweden, exist). The West must confront and overcome wealth disparities, as well as the inequalities between different nationalities, between the genders, and of the disenfranchised. Fourth, a system of competition must be introduced in the implementation of constitutionalism, for it is universally acknowledged that a society without competition lacks vitality. Competition has been introduced in the reform of China’s economic system and must also be established in the reform of the political structure, embodied in the use of a secret ballot system in electing organs of state power; in the selection of the most qualified civil service candidates through a system of examination; and through increased competition in party and social organizations, factories, schools, and research institutions. It is nonsensical to fret over the potential for competition existing between party and nonparty members or even between party members themselves. The introduction of competition to the political system is the most effective means of cultivating talent, formulating correct policy, encouraging vitality, and preventing corruption. Many have yet to recognize the significance of competition to China’s advancement of constitutionalism. Finally, a vast territory comprising a large and diverse population (including more than fifty nationalities), China confronts significant disparities in regional economic and cultural development. Thus, in advancing toward constitutionalism, China must emphasize social stability and gradual political reform; it is in the people’s interest to avoid social turbulence. However, such an approach presupposes the correctness of party policy. It is imperative that the party in power adjust to the historical trends of global development, fulfilling the increasing desire of the people for economic and political reforms toward the advancement of market economics and constitutionalism. This is the only course by which China may increase national power and prosperity while promoting the success and happiness of Chinese citizens.

SEVERAL FUNDAMENTAL THEORETICAL ISSUES REGARDING CHINA’S CONSTITUTIONAL REFORM* Xia Yong Translated by Kristin Lauria 1. Introduction: The Constitution and Reform On the twentieth anniversary of the promulgation of the current Constitution, the author reassesses the revision and implementation of the Constitution with mixed feelings. Twenty years ago, when constitutional revision was first undertaken, China was in a period of transformation and reform: thought reform (思想解放) was just beginning, economic reforms were in the works, and the early stages of the plans to initiate a free-market economic system and government under the rule of law were just being implemented. Under these conditions, the drafting of an expansive and enduring Constitution was no easy task. Although we may not go so far as to say that the drafters of the Constitution provided precise and definitive answers to the numerous fundamental theoretical issues facing the nation, they did decisively address a number of significant and complex problems in what should be recognized as a courageous and resolute manner. Take, for example, the amendment of the Constitution. When a constitution is amended during times of peace, the constitution being revised is generally used as a blueprint. However, this was not the case in the 1982 amendment of China’s Constitution, which was, in fact, a revision of the 1954 Constitution as opposed to the 1978 Constitution. When the establishment of a bicameral legislature was proposed, it was decided through open discussion that the People’s Congress system would be upheld. In both the constitutions of 1975 and 1978, the articles regarding the fundamental rights and duties of citizens followed those concerning the structure of the state; the order of these articles has since been reversed. Such measures take into account

* The original version of this chapter was published in Social Sciences in China 2 (2003).

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lessons learned and experience gained over the course of China’s constitutional construction. A study of the past twenty years of China’s constitutional reform and implementation is, in fact, one of constitutional evolution. Numerous constitutional revisions have been undertaken in response to emerging issues in the enforcement of constitutional law. It may be said that the current Constitution is a “reform constitution,” constructed specifically for the purpose of reform and amended repeatedly in order to further reform. We have, at present, reached a crossroads where we find that it is necessary to continue to progress along the previously established path of reform, continuing to reinforce the progress already made; at the same time, and more importantly, we must provide the space necessary for the solid theoretical and institutional framework provided in the Constitution to guide China’s continuing social development. A global survey of constitutional history reveals three primary categories, or models, of a constitution: revolutionary, reform, and constitutionalist.1 “Revolutionary constitutions” are generally created during periods of upheaval. Drafted following the seizure of state power by armed forces, they aim to legitimize and solidify the outcome of a revolution. Their legitimacy does not derive from the legally constituted authority of the past but from the revolution itself. “Reform constitutions,” on the other hand, are introduced during periods of transition or transformation and are usually the result of significant changes in a country’s circumstances. While strengthening and legitimizing the outcome of radical political, economic, cultural, or social reforms and maintaining social and political order during a period of intense change, a reform constitution must itself undergo some degree of transformation. Though containing certain revolutionary features, a reform constitution differs fundamentally from a revolutionary constitution in seeking simultaneously to build upon and transform the old system. A reform constitution draws its legitimacy from both the existing legally constituted authority and the reform itself. Thus, a reform constitution will, to a certain extent, contradict the previously existing constitution both substantively and procedurally. The successful establishment and implementation of a revolutionary constitution

1 The three constitutional classifications of revolutionary constitution, reform constitution, and constitutionalist constitution more accurately reflect the social and political transitions of non-Western constitutions.

theoretical issues regarding china’s constitutional reform 233 may preclude the need for a transitional reform constitution. Upon the successful establishment of the rule of law and a constitutional system of government under a reform constitution, a country may begin the transition toward a “constitutionalist constitution,” building upon the existing constitution and established laws; this transition must be firmly grounded in the rule of law. The constitution is a nation’s highest legal authority and, as such, guides all activities, including reform, within the state and society. Every crisis of power is a crisis of the constitution; thus, every major reform must be a constitutional reform. While the constitutionalist constitution is a reform-oriented model, it also aims to maintain order and stability. While enlarging the role of the constitution, constitutionalism strives to maintain the established order, and in this way, it provides an enduring foundation for peace and stability. China’s transition from a revolutionary constitution to a reform constitution is evinced in the five reforms undertaken since the complications of the 1975 and 1978 constitutional amendments: the abandonment of the practice of class struggle as a critical component of political life, the prioritization of the national policy of economic advancement, the implementation of the Reform and Opening-Up Policy,2 the advancement of democratic development, and the strengthening of the legal system. China is now at another historical turning point; we must show great foresight and perspicacity in advancing China’s historic gradual transition from a reform constitution to a constitutionalist constitution. As the most fundamental law of the land, a constitution reigns supreme in all spheres of national life, unifying and strengthening a country. Therefore, it must neither become ossified nor be incessantly subjected to reform. The adjustment and amendment of the current reform-oriented constitutional system in China should progress in a practical manner. We should carefully examine the theories and systems of constitutionalist government and examine all proposals for constitutional amendment scrupulously. In what follows, the author undertakes a preliminary examination of several key theoretical issues relating to China’s transition toward a constitutionalist constitution.

2 Launched by Deng Xiaoping in 1978, the Reform and Opening-Up Policy initiated China’s transition from a centrally planned economy to a market-based system.

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The constitution is the most fundamental law of the state and, as such, is the “parent law” of all other laws. Thus, within the practical operation of the legal system, all other state laws must be based upon, fall under the authority of, and accord with constitutional law, for no other law supersedes the constitution. However, because the constitution is constructed in response to specific national conditions, it cannot remain static but must, rather, adapt to the needs of the times. While legislators are legally authorized to formulate new policies and reform old ones through legitimate legal measures, the constitution does not itself provide the legal and legitimate basis for constitutional reform, for constitutional authority is not derived from any existent law, institution, or person. Then upon what basis shall China draft a new Constitution or revise the current one? It is generally believed that the evolution of law should reflect that of society, resulting from a nation’s shifting economy or social structure. However, the law need not and, in fact, should not change with every societal shift. Laws should respond to social changes. In some instances, this may lead to legal reform; in others, the law must remain constant in order to maintain stability during periods of intense social transformation. In yet other instances, the law must curb excessively rapid or negative social change. Some may argue that legislative reform, in keeping pace with societal evolution, ought to reflect the will of the majority. According to this view, legal developments are legitimate insofar as they are the democratic embodiment of popular views. However, this notion assumes that the views of the majority are, without exception, sensible, informed, and accurate. How can we ensure that a law formulated upon and grounded in public sentiment is going to both meet the needs of the times and endure for future generations? How can we guarantee that the position of the majority is not mistaken? In order to answer these questions, we must first examine the basis upon which law is law and constitution is constitution. In ancient China, this foundation was referred to as the tao (道, meaning path or way). We should not merely consider this question from the procedural perspective of legal efficacy but should, rather, weigh carefully the ethical aspects of the problem. The constitution is recognized as the most fundamental law of the land because it reflects a principle itself so fundamental that it provides the constitution with the highest

theoretical issues regarding china’s constitutional reform 235 possible authority. This fundamental principle imparts supreme authority because it embodies essential values. These essential values are humanity and freedom, the principal concern of which is safeguarding the dignity and well-being of all humanity; these are universal moral values. The fundamental principle of the constitution is the theoretical embodiment of these universal moral values; consequently, it constitutes a universal norm. Thus, we see that it is because of the profound and far-reaching significance of these essential moral values of freedom and humanity that the underlying principle of the constitution is widely acknowledged, universally applicable, and ultimately enduring. This lasting principle is the foundation upon which practical laws are formulated, laws which themselves may be changed to meet the needs of the times. As the supreme legal authority of the state, the constitution emerged and evolved through humankind’s struggle to understand and apply this fundamental principle. The constitution has, throughout political civilization, exemplified and safeguarded the basic values of humanity and freedom, suppressing and eliminating inequality and injustice. Established as a standardized mechanism of political restraint, the constitution protects the inalienable rights of citizens from the potential violation of political authorities. As the foundation of the state, the heart of the political system, and the defender of the citizenry, the constitution proclaims the principles of republicanism, democracy, equality, and freedom. Enshrined in the constitution are the civil rights necessary to balance state power; thus, constitutionalism becomes the fundamental political order of the constitution. Therefore, it could be said that the fundamental principle with its inherent universal values is the logical and moral foundation for the constitution and constitutionalism. This principle alone supersedes the constitution, for as a fundamental, logical “path,” it provides the legal basis and authority of the constitution. We are not, then, responsible for producing practical rules for daily living; rather, we need only to develop and expound those provided by the fundamental principle of the constitution, for although this principle is universal, it may be adapted to meet the ideological needs of each individual state and its culture. The interpretation and implementation of this principle is, likewise, determined by the legal tradition and institutional structure of the state within which it is applied. Even the term used to identify this fundamental constitutional principle is relative to the specific cultural realities of the individual state. It may be referred to as an “objective principle,” a “natural principle,” a “supreme principle,” or a “divine

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principle”; it may also be described as a “universal understanding,” a “fundamental law,” “a morally constituted authority,” “the principle of constitutional government,” or “the heavenly way.” It matters little which, if any, of these terms we employ; rather, we should concentrate our efforts on grasping more fully the nature and importance of this fundamental principle. This principle provides the basis from which to resolve issues of constitutional legitimacy and establish the moral origins and logical procedures of constitutional government. This is primarily achieved through the translation of the fundamental principle, embodying the universal moral values of freedom and humanity, into political and procedural principles. In the modern era, political principles are primarily concerned with popular sovereignty, resolving issues of political power and legitimacy; procedural principles, conversely, mainly involve procedural justice, confronting issues related to the formulation and legitimacy of policy. Within the public sphere, political and procedural principles address the issue of the significance of moral values and, in so doing, comprise the primary components of the constitutional system. These three different principles—moral, political, and procedural—embody the values of freedom and humanity, popular sovereignty, and procedural justice, respectively (or, as defined in the traditional Chinese, reflect morally, politically, and legally constituted authority). Taken together, these three principles constitute the basis for the establishment of the constitution as the fundamental law of the land, simultaneously supporting the supreme authority of the constitution and guiding constitutional reform. These principles constitute the only “laws” that supersede constitutional law, and necessarily so, for history has shown that power unrestrained leads to despotism and corruption. If law is indeed above authority, then there must be a law that supersedes even the most fundamental law of the land. The relationship of the moral principle to the political and procedural principles is that of morally constituted authority to politically and legally constituted authority. In many instances, popular sovereignty and procedural justice provide a logical basis from which to argue the legitimacy and supremacy of a particular law (i.e., the law reflects the will of the people and conforms to the requirements of due process). However, ultimately, political and procedural principles are deduced from, based upon, and defined by the moral values of freedom and humanity, for these alone constitute the core of the fundamental principle, determining and representing the true essence of the

theoretical issues regarding china’s constitutional reform 237 constitution and establishing the ultimate basis for and legitimacy of constitutional government. Unless we fully grasp this moral “core” of humanity and freedom, we have only constitutional procedures rather than constitutional government. Constitutional government ultimately demands the logical justification and legal legitimacy of all institutions and laws, including the constitution itself, as opposed to merely requiring constitutionality, popular sovereignty, or procedural justice. This is the greatest difference between the conditions of constitutional government and those of democratic government. The strength of the current Chinese Constitution lies in its affirmation of principles that are not only applicable to China’s current, evolving societal conditions but also relevant to its long-term goals and requirements. The decision to use the 1954 Constitution, rather than the 1978 Constitution, as a blueprint for constitutional revision was based upon a recognition of the former’s more perfect reflection of the demand for popular sovereignty and more complete embodiment of the common characteristics of modern constitutions. This insight should be attributed to the atmosphere of intellectual emancipation characteristic of China’s reform and opening-up era and advanced by such reform-oriented leaders as Deng Xiaoping, who, having suffered greatly during the Cultural Revolution, attached special importance to the establishment of socialist democracy and legal institutions. Nonetheless, China’s current Constitution is somewhat deficient in its embodiment and expression of the fundamental principle, particularly in its prescription of highly generalized abstract norms in rigorous and sophisticated legal and technical language. Such abstract stipulations are valuable only insofar as they exceed the ability of more precise provisions to adapt to and change with the specific needs of the times. When the Constitution was revised in 1982, there were those who questioned the need for reform, arguing that if the Constitution is the fundamental law of the land, then it need not be constantly reformed. However, if we had merely been concerned with maintaining the stability of the Constitution, the imperfect provisions of the 1978 Constitution would have been preserved to this day. The current Constitution has not been spared the embarrassment of multiple revisions, having been revised—in the twenty years since its formulation—three times, including seventeen individual amendments made primarily to the preamble and the chapter on general principles. This alone suggests a need to deepen our understanding of the fundamental constitutional principle and indicates the inadequacy of the current

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Constitution to reflect the universal moral values. Thus, it is evident that we need to improve our understanding and formulation of constitutional law. At a time when reform and innovation are in vogue, we should pay particular attention to maintaining the balance between a strong constitutional core and innovative era-specific reforms. Rather than being concerned with what is or is not to be changed, China’s constitutional revision should focus on that which can be reformed and should be reinforced. This constitutes the dialectics of reform.3 3. Is the Constitution Law? Of paramount importance to constitutional reform, this issue has been examined repeatedly over the course of China’s nearly one hundred years of constitutional history. This question has, in recent years, become increasingly significant as a result of China’s domestic conditions. The constitution is universally recognized as the fundamental law of the state, as the “parent law” of all other laws. However, when determining the extent to which the constitution ought to be used as the basis for resolving disputes, lawsuits, or other public affairs issues, we find that these familiar descriptions of the constitution fall short of providing a clear course of constitutional action. Perhaps it is for this reason that it was not until 2001 that China’s Supreme People’s Court (最高人民法院) made its “first constitutional ruling,”4 on a case concerning the right to education.5 The question naturally arises of

3 With the spread of Western theories and ideology to China, certain traditional Chinese principles have been diluted or lost in the indiscriminate pursuit of modernity. In the early stages of China’s reform and opening up, a number of positive achievements of the previous era came to be characterized as rigid, conservative, and backward. Thus, in reforming the Constitution, we must identify and maintain the fundamental principles at the heart of the Constitution in order that the strong constitutional foundation is not eroded by frivolous attempts at innovation. 4 See “Maoming shangxue shijian yinfa xianfasifahua diyian 冒名上学事件引发宪 法司法化第一案 [The First Constitutional Ruling in the Case of Assuming an Alias to Attend School],” Nanfang zhoumo 南方周末 Southern Weekend, August 16, 2001. 5 “Guanyu yiqinfan xingmingquandeshouduan qinhai xianfa baohude gongminshoujiaoyu de jibenquanli shifou yingchengdan minshi zerende pifu 关于以侵犯姓 名权的手段侵害宪法保护的公民受教育的基本权利是否应承担民事责任的批复 [Reply to the Report on Whether the Parties Whose Constitutional Rights to Education Were Violated Should Be Held Accountable for Violating the Rights to Personal Name],” Fashi 法释 [Legal Interpretations] 25 (2001).

theoretical issues regarding china’s constitutional reform 239 why, almost twenty years after the drafting of the current Constitution, this was only the “first ruling.” We find ourselves faced with the disconcerting and daunting question of whether the constitution is, in fact, law at all. While such a question may seem to insult the legal authority of the constitution, it also raises an issue of practical import: if the constitution serves merely as the basis for legislation formulation and does not provide a foundation for judicial adjudication, if it fails to guarantee due process or establish the apparatus necessary to determine the constitutionality of a law and prescribe corrective measures in the case of the violation thereof, then it is both justifiable and necessary to question the constitution as law. Here, we must examine the very nature of law, for if the constitution is to be recognized as the most fundamental law of the land, its legal character must first be demonstrated. Although, unlike other laws, the constitution is highly political in nature, it is, nonetheless, a law. So what is it, then, that makes a law a law? A law is a societal rule, the violations of which must be investigated and resolved through due process and the appropriate application of state power. People are naturally inclined to form communities, and communities must abide by rules. Laws are one form of societal rule. However, once rules are established, we are faced with the question of how to respond when a rule is violated. A rule must possess the ability to restrict, or restrain, action; thus, laws are necessary to the extent that they enforce (i.e., make mandatory and morally binding) certain necessary societal rules. The very essence of a law is restriction, not persuasion. The basic function of a law is to reprimand and punish violations of societal rules, not merely to declare or confirm these rules. As the most fundamental law of the land, the constitution differs from the guiding principles and doctrines of the party and state in its basic approach and course, for its principal purpose is reflected in its ability to restrain; in other words, the value of the constitution stems from its facility and efficacy in enacting punishment following the violation of a rule. It is the ability and potency of the law to restrain that makes it effective and beneficial. If a law were to be implemented without first establishing the necessary mechanisms of enforcement and due process to handle violations of that law, such a law would not be said to possess the full power and efficacy of law and, in fact, may not be considered a law at all. Of course, the constitution differs from other laws in the manner in which it is enforced. While legislative, executive, and judicial measures may be employed to improve constitutional

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enforcement, without the ability to confront questions of unconstitutionality, the constitution lacks the full efficacy of law. In actuality, the fundamental legal character of the constitution and its consequent legal authority are already clearly defined in the current Constitution. Party and state leaders have time and again emphasized the ultimate legal authority of the Constitution, labeling constitutional violations “the most egregious of criminal activities.” In fact, in both legal and social circles, the establishment and reinforcement of constitutional authority are widely supported. The problem, then, seems to exist in the translation of measures necessary for constitutional enforcement into systematic and procedural requirements. The ultimate legal authority and enforcement of the Constitution is demanded by both the political principle of popular sovereignty and the procedural principle of procedural justice. Although the precise methods and mechanisms of constitutional enforcement will vary with a nation’s political model and system, two interrelated approaches are predominantly employed: constitutional review and constitutional litigation. In order for a constitution to be considered the fundamental law of the land, it must provide the basis upon which legislation is formulated. Through constitutional review, we guarantee that all laws are fundamentally constitutional. Constitutional litigation is equally important, for it is only through constitutional litigation that the constitution achieves true legal efficacy, becoming a “living law.” It could be said that constitutional review and litigation are the means by which we ensure that the constitution is practically and effectively implemented, for they are not only symbolic in establishing the constitution as a law, but they also safeguard the actual existence and role of the constitution. If legal efficacy is the defining trait of the constitution as law, then constitutional review and litigation are the practical evidence of the constitution’s legal efficacy. This is not to say, however, that each and every constitutional provision may be practically and directly applied in court. A nation’s constitution, regardless of whether it derives from a written or nonwritten tradition, is generally comprised of two parts. The first of these can, and ultimately must, be applied in court, for it constitutes “law” in the strictest sense, establishing a constitutional legal standard; it is, simply put, constitutional law. The second component of the constitution is primarily concerned with theoretical principles and political practices and, as such, cannot, and should not, be directly applied in court; these constitutional provisions are not, in the literal sense, “laws” but

theoretical issues regarding china’s constitutional reform 241 rather comprise constitutional moral standards (i.e., constitutional norms). Despite this distinction in purpose and operation, these two aspects of the constitution, taken together, constitute the most fundamental of laws. Although constitutional norms are not directly applicable in court proceedings, they nonetheless remain binding, for they have gained the support and approval of both citizens and leaders alike. Without constitutional norms, state institutions and leaders will, sooner or later, violate the law and ultimately themselves become the subjects of constitutional review. While not directly employed in court proceedings, constitutional norms may be consulted when interpreting the constitution for application in court; in this sense, they constitute the basis for constitutional legislation and constitutional review. Thus, we find that the constitution is an assemblage of rules comprised of constitutional norms, constitutional laws, and related systems and practices, all of which reflect the fundamental principle. Known as the father of British constitutionalism, Albert Venn Dicey (1835–1922) once posed a question of great import to Britain’s constitutional government: is constitutional law really “law” at all?6 He pointed out that the term constitution, as used in Britain, included all “rules” directly or indirectly affecting the distribution and implementation of state power (here, he purposely used the term rules rather than laws). In Britain, Dicey contended, the Constitution is comprised of two distinct sets of principles or maxims. The first of these constitutes “law” in the strictest sense. Whether embodied in recorded or unrecorded statutes, codified or common law, this set of rules is directly enforced by the courts and, being legally binding, constitutes “constitutional law” in the literal sense of the term. The second set of rules consists of commonly accepted conventions, customs, and practices, which, though serving to regulate the conduct of the members of Parliament and the Ministries, as well as other government officials, do not constitute law in the literal sense, for they are not enforced by the courts. This portion of the Constitution may be termed “constitutional conventions” or “constitutional norms.” Dicey added that despite the distinction between these two constitutional components, both are of equal import in effective constitutional government. Frederic Maitland (1850–1906) also delved into the legal nature of the constitution from a

6 A. V. Dicey, An Introduction to the Study of the Law of the Constitution, 10th ed. (London: Macmillan, 1959), 419.

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rhetorical standpoint. According to Maitland, the conduct of an individual or an official may be at once legal and unconstitutional, for it may violate a nonlegal component of the constitution. These nonlegal rules are derived from the moral principles, practices, and customs preserved in the constitution. Although the conduct of an individual or an official may violate a generally observed and popularly upheld standard of behavior, such conduct is not prosecutable and will often go unnoticed, attesting to the nonlegal nature of certain constitutional principles.7 Starting from the premise that laws are the decrees of a sovereign people, John Austin (1790–1859) viewed the constitution as the amalgamation of fundamental morality and fundamental law.8 Taking constitutional review and litigation as the primary means of enforcing the constitution, we must be cautious in confronting the issue of the so-called “judicialization” of the constitution. It would be unwise to take an overly simplistic approach to constitutional enforcement, requiring that the constitution be applied directly in the daily proceedings of low-level courts or encouraging judges to invoke provisions of the constitution in their every judgment; such superficial measures fall short of effective constitutional enforcement. While Chinese judges may, with relative ease, cite the Constitution as the grounds for their ruling on a case, we must question the necessity or propriety of such a practice. Constitutional judicialization, or the general and frequent invocation of constitutional provisions in judicial interpretation and sentencing, relegates the Constitution to the status of an ordinary law. Thus, strict provisions must be established for the application of the Constitution. Under present circumstances, a general judicialization of the Constitution does not seem prudent. Rather, we must, through a thorough reexamination of the Constitution, distinguish those aspects that comprise constitutional law and, as such, must be practically applied in court from those portions that, embodying the spirit of constitutionalism and the rule of law, are best classified as constitutional norms. Thus, it is seen that the Constitution provides not only a practical legal basis for the effective implementation of constitutional review and litigation but also a normative foundation for

7 F. W. Maitland, The Constitutional History of England (Cambridge: Cambridge University Press, 1920). 8 John Austin, Lectures on Jurisprudence or the Philosophy of Positive Law (London: 1919), 245, 267.

theoretical issues regarding china’s constitutional reform 243 the standardization and legalization of constructive, progressive, and logical life practices. Upon the establishment of suitable conditions, the Constitution may be amended or redrafted in order to construct a solid foundation for constitutional government. In the amendment or redrafting of the Constitution, great emphasis should be placed on strengthening its legal efficacy. Practically applicable legal standards must constitute the principal component of the Constitution, for constitutional moral norms are enforced through constitutional law. Mandated by the rule of law, this is the major difference between modern and medieval constitutionalism.9 4. What Is Unconstitutionality and How Is It to Be Identified? Since the constitution is comprised of both legal and moral principles, we must, in establishing constitutional government, consider both the implementation of constitutional law and the role of constitutional moral norms. At the same time, it is apparent that every unconstitutional act cannot be prosecuted. We must differentiate between those unconstitutional acts that must be investigated and resolved and those that do not require specific attention. In order to do so, we must first determine what is meant by “unconstitutional.” In defining unconstitutionality, we must not only consider the extent to which the constitution may legally restrain action but also consider to whom, specifically, constitutional limitations apply. From a theoretical perspective, there are three main models for determining the scope of constitutional control. According to the legalist model, the constitution merely regulates the actions of those who are involved in the legislative process. The governmental model holds that the constitution monitors the behavior of those who perform legislative roles, as well as those involved in governmental administration. Under the naturalist model, the constitution not only applies to lawmakers and government officials but also guides the conduct of every citizen through the implementation of state law, making it possible for private citizens 9 “The fundamental weakness of all medieval constitutionalism lies in its failure to enforce any penalty, except the threat or the exercise of revolutionary force, against a prince who actually trampled underfoot those rights of his subjects which undoubtedly lay beyond the scope of his legitimate authority.” Charles Howard McIlwain, Constitutionalism: Ancient and Modern (Ithaca, NY: Cornell University Press, 1940), 95.

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to violate the constitution even when acting in a nongovernmental capacity.10 Of these three, the author favors the legalist and governmental models. The constitution should regulate the conduct of state organs and public authorities, not that of private citizens and corporate entities. To cite a commonly used example, while it is universally recognized that murder violates the right to life, in the case that one citizen kills another, the crime would be investigated and prosecuted under criminal law, not examined for constitutionality. Conversely, legislation legalizing murder or obstructing the just prosecution of a murder case would clearly be considered unconstitutional. Thus, rather than monitoring the relationships between individual citizens, the constitution should regulate the conduct of state organs, as well as the relationship of these institutions to individual citizens.11 Because the constitution stipulates that citizens are obligated to abide by the law, violations of the law constitute violations of constitutional obligation; however, it does not follow that every legal violation should be investigated for constitutionality. The constitution, while exercising substantial authority over citizens’ standard and style of living, is not merely a law for daily life. If the constitution is to positively impact the lives of citizens, it must effectively regulate and restrict state power and protect the rights of citizens. Only when the constitution becomes a political norm will it become a living norm. For determining the scope of constitutionality, the author favors the legalist model, as well as certain aspects of the governmental model, including the oversight of not only legislative operations but also those of administrative, judicial, and other public bodies. Of course, according to this approach, the administrative operations of the party in power must also accord with the constitution, for if the power of a single public authority surpasses that of the constitution, the constitution loses its authority. Given China’s current circumstances, we must not only further define the concept, scope, and symptoms of unconstitutionality, but also clarify the role of constitutional litigation and review, establish criteria for 10 John H. Garvey and T. Alexander Aleinikoff, Modern Constitutional Theory, 1994), 702–710; Larry Alexander and Paul Horton, Whom Does the Constitution Command? A Conceptual Analysis with Practical Implications (Santa Barbara, CA: Greenwood Press, 1988). 11 The Supreme Court of the United States sees the acts of social organizations as “extensions of state acts” (Burton v. Wilmington Parking Authority, 365 U.S. 715 [1961]). Only when a social organization is empowered by a state organ or acts in place of a state organ is it likely to become a subject of unconstitutionality.

theoretical issues regarding china’s constitutional reform 245 identifying unconstitutional acts, and create mechanisms for adjudicating constitutional disputes in order to reinforce the supreme authority and efficacy of China’s Constitution. This should be achieved through the implementation of dynamic democratic legislation and mechanisms of legislative oversight, as well as through the impartial exercise of state power and the administration of justice under the rule of law. Within the existing system, the National People’s Congress (NPC) and its standing committee are endowed with the authority to formulate national legislation. In addition, the State Council holds the power to enact national administrative rules and regulations, the ministries and commissions of the State Council and local governments possess the authority to implement these regulations, local people’s congresses and their standing committees are charged with formulating local rules and regulations, and the Supreme People’s Court and the Supreme People’s Procuratorate are responsible for interpreting the law. Given the considerable size of this body of normative documents and the numerous administrative, legislative, and judicial organs contributing to the formulation and implementation thereof, it is imperative that the existing rules, regulations, and legislation be examined for constitutionality; of course, it is first necessary to designate responsibility for identifying and resolving issues of constitutionality. Adherence to the principle of democratic centralism in the formulation of legislation—according to which the majority view prevails over that of the minority—does not ultimately guarantee absolute conformity with the Constitution. Although the NPC and its standing committee currently oversee the implementation of the Constitution, the theoretical support and the institutional support necessary for effective constitutional interpretation and, more specifically, for the identification and redress of constitutional violations are still lacking. This is apparent in Article 88 of the Legislative Law of the People’s Republic of China (立法法), according to which the NPC may amend or annul any law or regulation enacted by its standing committee that it deems inappropriate or unconstitutional, particularly those related to the stipulations on autonomy contained in Section 2, Article 6 of the Constitution. Article 88 further defines the authority of the NPC’s standing committee to repeal any administrative law or regulation deemed unconstitutional, as well as to annul any local-level law viewed as conflicting with the Constitution, state law, or administrative regulations. Although the phrasing of these constitutional provisions is imbued with the spirit of constitutional government (utilizing terms such as inappropriate, contradict, amend, and annul ), they

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fail to provide concrete standards of measurement and mechanisms for enforcement. Even more critical is the question of whether the conduct of the NPC and its standing committee is subject to constitutional investigation. If so, how is the NPC to review the constitutionality of its own legislation? From a theoretical perspective, the principle of popular sovereignty requires that the entirety of state power be held by the people, not by the NPC. The NPC is the executer, rather than the holder, of sovereignty; it is the primary organ through which the party exercises state power, as opposed to the possessor of state power. Furthermore, we must differentiate between the organs of government responsible for drafting the Constitution and those that formulate legislation. Additionally, we must differentiate between constitutional matters and legislative matters, the citizens and their representatives, and the constitutional laws enacted by the citizens and the legislation formulated by their representatives. Though interrelated, these are not identical. Representatives must not disregard the will and interests of the people they represent, and legislative organs must not violate constitutional law. In its legislative operations, the legislative body must not deprive the people of their civil rights, enact ex post facto—or retroactive—laws, or ignore established procedures of constitutional amendment. In the case that a law contradicts the Constitution, it should be annulled or amended by the appropriate government body. However, the legislature should not be charged with the tasks of constitutional interpretation and oversight, for having the legislative body be responsible for monitoring its own work would amount to a conflict of interests. In the contemporary era, four models of constitutional oversight predominate—review by legislature, review by common court, review by constitutional committee, and review by constitutional court—each of which has advantages and disadvantages. It is imperative that we take into consideration current conditions in improving mechanisms of constitutional oversight under the People’s Congress system and in accordance with both the political principle of popular sovereignty and the procedural principle of procedural justice. 5. What Is the Core of the Constitution? Constitutional history shows that the constitution is the embodiment of the values of freedom and humanity manifested in the public sphere

theoretical issues regarding china’s constitutional reform 247 in the political principle of popular sovereignty and the procedural principle of procedural justice. Thus, the restraint of state power and the protection of civil rights constitute the core of the constitution. The rational allocation of state power requires a full understanding of its nature, origin, and foundation. Prior to the reform and opening up, the state and its laws were regarded as tools of class domination and oppression; the principles of popular sovereignty, democracy, and freedom were also viewed through the lens of class analysis. Thus, it is now necessary to further explore the relationship between political and procedural principles, as well as the relationship between the possession and allocation of power. According to Article 2 of the Constitution of the People’s Republic of China (PRC), the entirety of the state power of the PRC belongs to the people. The NPC and local people’s congresses are the organs through which the people exercise this power. Through various channels and systems, the affairs of state and society, as well as economic and cultural endeavors, are administered in accordance with law. This approach not only reconciles the demands of popular sovereignty and practical procedural logic but also reflects an ideological awareness of the need to monitor the relationship between the possession and allocation of state power. Political legitimacy must be exemplified, fortified, and preserved through procedural legitimacy. Unless the question of the possession of power is satisfactorily resolved, the structures of power, no matter how logically established, are meaningless. Through the standardization, supervision, and restriction of authority, constitutional reform must guarantee that the power of the state remains in the hands of its citizens. Here, the author will examine several theoretical issues concerning the structure and operation of state power. The first of these concerns the relationship between state power and social strata. Fundamental to the modern Constitution are the notions of the state and the people, in contrast with the previous focus on social classes. At the heart of the modern constitutional structure are the concepts of state power and civil rights, rather than those of the ruling power and the rights of classes. The concept of class is a marked feature of socialist constitutions. How, then, do the origin and nature of state power reflect and respond to changes in the social structure? To what extent do changes in the social structure require adjustment of the systems and resources of government? How will reform of the principle of income distribution and the mechanisms of social and

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political participation contribute to the consolidation and fortification of the class base of state power in order to establish and improve just and logical relations between social classes? The second issue involves the power relations among the organs of state power. China’s current Constitution stipulates neither the separation of powers nor federalism; however, the operational division of the executive, legislative, and judicial organs of power and of the central and local power structures has, in practice, been achieved. In order to improve the efficacy with which the constituent parts of the state power structure operate to provide a system of mutual checks and balances, oversight, coordination, and support, the relationship between the people’s congresses, the government, and the judiciary, as well as that between the central and state organs of power, must, from a legal theory perspective, be clarified so as to define the allocation of official and procedural power. A number of issues regarding the distribution of power between state organs must be resolved. Examples of these include the following: Is it the sole responsibility of the people’s congresses to determine the legality of the acts of governments? To whom are the institutions responsible for overseeing the auditing and management of state assets and the investigation and punishment of corruption accountable? What specific measures may be taken to regulate the legislative and judicial organs in their formulation and interpretation of law? How are we to justify the fact that while China operates under a single, unified system of government, the special administrative regions exercise greater legislative, judicial, and administrative power (including issuing their own currencies) than the provinces under the central state system? The Constitution stipulates that representatives of the higher level people’s congresses be elected by the people’s congresses at the next lowest level; how, then, shall we, in legal terms, explain the fact that local representatives must be approved by the central government? What theoretical bases and constitutional restrictions are provided for the decentralization of legislation? Upon what basis are administrative and financial powers divided between central and local governing bodies? How shall we establish a constitutional mechanism for resolving disputes regarding the relationship between the powers of central and local governments? The third theoretical issue we must consider involves the relationship between the organs of the party and those of the state government. The restructuring of the party and state systems of leadership must keep pace with constitutional reform. The reform and improvement

theoretical issues regarding china’s constitutional reform 249 of the party’s model of leadership and governance are of fundamental importance to the advancement of socialist democracy and the establishment of a socialist state under the rule of law. Thus, we must address question such as the following: To what extent should the Communist Party of China, as the party in power, play an active role within the organs of state power, overseeing and coordinating the general operation and implementation of state power? How shall we, institutionally and procedurally, achieve the delicate balance between the leadership of the party, the sovereignty of the citizenry, and the administration of the country under the rule of law? What are the constitutional implications of exercising state power in accordance with the rule of law? Another issue of central importance to constitutional reform is civil rights. China is entering the era of rights. In this new era, the values of human dignity and freedom are increasingly pivotal to social advancement and institutional improvement. With the transformation of the ambiguous desires and requests of citizens into concrete demands for civil rights, previous modes of addressing social inequity, such as moral deliberation, administrative mediation, social action, or even violent revolt, have been replaced by standardized legal procedures, judicial action, and public administration. As the effective establishment of democratic governance leads to increasing autonomy and as the rights of individuals continue to define the boundaries of public power, it is imperative that we continue to promote the establishment of the rule of law. Through a better understanding of the current “era of rights,” we will be able to better facilitate social development. We say China “is entering,” rather than merely “progressing toward,” the era of rights because in identifying, explicating, and applying the moral, political, and procedural principles, both the language of civil rights and a rights-based system have played an increasingly formative role. This increasingly rights-centered approach has generated a number of positive results. Economic reform has led to the individualization of economic interests, as well as the growth of individual interests, which, in turn, has resulted in a growing awareness among citizens of their individual rights with regard to person, property, and political participation. Government-sponsored campaigns aimed at educating citizens on various aspects of the law have initiated social movements intended to protect citizens’ rights, and these have not only precipitated a strengthening of the individual awareness of rights but also increased the overall understanding of rights among the citizenry, optimizing the structure of civil rights information and improving civil rights

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litigation. In the transition from a planned economy to a market economy, the “softening” of administrative measures aimed at protecting the interests of certain social groups (including those of the lowest social strata) resulted in institutional voids in the protection of citizens’ rights, which, in turn, not only increased citizens’ demands for individual rights but also placed greater demands on the legislative, judicial, and social mechanisms of rights protection. Finally, certain rigid requirements have been put forth by the United Nations’ International Bill of Human Rights and the World Trade Organization regarding the embodiment of human rights in domestic legislation and the protection of rights in domestic courts. In the current rights era, these standards constitute a universal ideal and must not be ignored. With regard to the concept of rights, we must not only strengthen citizens’ understanding of civil rights but also reinforce the notion of human rights. Grounded in a conceptual basis of ultimate authority, egalitarian dignity, and inherent freedom, the universal, moral, and revolutionary nature of human rights give them ascendency over their legally derived counterparts (i.e., civil rights).12 In the same way that the constitution, as a nation’s most fundamental law, is exceeded in authority by the cardinal principle, which is the very cornerstone of the constitution, so the authority of human rights, as the foundation of all rights, supersedes that of civil rights. Thus, an understanding of human rights must underlie civil rights, and these must be protected and maintained in the Constitution of the PRC in order to prevent rights violations detrimental to the establishment of constitutional government and the rule of law during the transformation of the moral principle into political and procedural principles. The embodiment of basic human rights within the Constitution will also assist legislative and judicial organs, when weighing the competing interests of various groups, to formulate and interpret law in a manner conducive to the protection of rights. China’s current Constitution contains a relatively comprehensive explanation of the rights and duties of citizens. Amendments to the existing Constitution must incorporate existing civil rights, as well as 12 [ED: Please note that for reasons that I cannot explain, some of the text in the footnote disappears if you delete this note. Please advise.] Xia Yong 夏勇, Renquan gainian de qiyuan 人权概念起源 [The Origin of the Concept of Human Rights: The Historical Philosophy of Rights] (Beijing: China University of Political Science and Law Press, 2001), 88–116, 169–170.

theoretical issues regarding china’s constitutional reform 251 rights defined in the international human rights conventions to which China is party (e.g., private property rights). In order to balance the requirements of international standards and domestic laws, facilitate the enforcement of international conventions in Chinese courts, and advance civil rights litigation, we must ultimately consider drafting a separate bill of rights while gradually revising existing constitutional laws. At the same time, we must work in earnest to resolve the current conflicts between the International Covenant on Civil and Political Rights and China’s domestic laws. With regard to the rights of the individual, we must reevaluate and reform the current practices of reeducation through labor, custody and repatriation, housing and rehabilitation, and criminal defense. In advancing universal suffrage, we must enlarge the scope of competitive elections and strengthen the current system of direct grassroots elections with the goal of incorporating these practices into the state power system. Finally, and most importantly, we must examine the right to remedy, specifically the right to constitutional remedies. The ancient Roman saying, “Ubi jus, ibi remedium” (Where there is a right, there is a remedy), still holds true today: a citizen can only be said to possess rights who receives remedy when wronged. Remedy for wrong is ensured by modern laws and international conventions on human rights in the fundamental right to a fair trial. The International Covenant on Civil and Political Rights stipulates, In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

This means that a fair hearing by an impartial tribunal, as opposed to any other organization or entity, is the right of every citizen, and this absolute, fundamental right may not be arbitrarily withheld by the court. Whether or not—and the extent to which—a citizen receives a fair trial as well as the results of the trial depends upon both the system in operation and the circumstances and ability of the citizen. A citizen’s actual ability and circumstances in a lawsuit are primarily determined by the following factors: knowledge, wealth, ability, status, position, profession, place of residence, and social connections. These factors contribute significantly to the vast range in the actual rights of citizens and influence the extent to which rights are practically enjoyed, though all citizens are nominally entitled to the same legal

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rights. In the area of public law, where the state and government are always at an advantage, it is much less likely that the right to remedy will be upheld. Since the initiation of the Reform and Opening-Up Policy, numerous unjust and contrived legal suits have been redressed and the right to remedy has gradually taken hold in the area of public law. However, generally speaking, advancements in public law still lag behind those in private law, and the scope, mechanisms, and efficacy of remedy in public law are far from satisfying societal demands. Constitutional reform is, thus, imperative.

JUDICIAL INDEPENDENCE AND CONSTITUTIONAL REFORM* Ma Huaide and Deng Yi Translated by Kristin Lauria and Li Peichun Introduction In September of 1997, the Fifteenth National Congress of the Communist Party of China (CPC), in its issuance of the fundamental guiding document of the party, proposed the advancement of judicial reform in order to ensure that judicial organs may exercise adjudicational and procuratorial authority independently and impartially under the rule of law.

This proclamation sparked a heated debate among scholars of jurisprudence on issues of judicial independence and reform that continues today.1 However, few scholars have explored the fundamental theoretical issues related to judicial independence or discussed the constitutional revisions necessary to advance the reform of the judicial system.2 In the winter of 2002, the Sixteenth Party Congress furthered the program of advancing the reform of the judicial system, indicating that China’s judicial reform would ultimately advance beyond the realm of academic discussion to the sphere of legal practice. Thus, research conducted on these issues is of great practical and theoretical significance.

* The original version of this chapter was published in Faxue 法学 [Law Science] 12 (2003). 1 Judicial independence herein refers to the conducting of independent trials, and judicial organs shall be used to mean the courts. However, the term judicial shall also be used in the broader sense of its meaning. 2 The authors have encountered only the following article on constitutional revision as it related to judicial reform: Liu Zuoxiang 刘作翔, “Zhongguo sifadifang baohuzhuyi zhipipan 中国司法地方保护主义之批判 [A Critique of China’s Judicial Regional Protectionism: An Exploration of Judicial Reform and the Nationalization of Judicial Authority],” Faxue yanjiu 法学 [Legal Research] 1 (2003).

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Modern judicial independence must be understood in two respects. First, the principle of judicial independence is fundamental to the governance of a nation under the rule of law, meaning that judicial organs must be free to exercise judicial authority according to established procedures and subject to legal boundaries alone without any external interference. Second, judicial independence is an internationally recognized fundamental human right, under which all citizens are entitled to a fair and transparent trial conducted by an independent and impartial court.3 However, in both of these respects, the core of judicial independence lies in the maintenance of judicial impartiality, which serves as a precursor for the realization of justice through legal means. Thus, judicial independence, in essence, allows existing laws to “independently” determine right from wrong without being distorted by external forces or wills. Judicial independence necessarily relies upon systematic guarantee. First, judicial organs constitute the weakest components of a nation’s political power structure, for possessing only the power to judge and lacking economic or military authority, these are frequently susceptible to the interference of the executive and legislative branches. Second, the parties involved in a judicial dispute are rarely equal in power and authority; one party inevitably mobilizes the various social forces at its disposal in order to influence the court’s decision in its favor. Thus, it is seen that the judicial process is itself vulnerable to interference, for without an effective system to guarantee the independence of judicial bodies, a biased and superficial judgment is legitimized and the judicial process becomes no more than a charade. It is, therefore, of utmost importance that judicial independence be protected through establishing the necessary systems whereby the structure and finances of the courts continue to be independent and the system of appointments and high salaries of justices remain unchanged. However, all 3 See also articles 8 and 10 of the Universal Declaration of Human Rights, Section 1 of Article 14 of the International Covenant on Civil and Political Rights, and the United Nations’ Basic Principles on the Independence of the Judiciary. As suggested by L. V. Singhvi, both the independence and impartiality of the courts constitute a political right of legal consumers rather than a privilege of the courts themselves. Sifagongzheng yu quanlibaozhang 司法公正与权利保障 [ Judicial Impartiality and the Guarantee of Rights], ed. Human Rights Research Center of the Peking University Law School (Beijing: China Legal Publishing House, 2001), 145.

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power must be subject to restrictions, for “absolute power corrupts absolutely.” Thus, it is necessary to implement systems and mechanisms of oversight that guarantee transparency and accountability, such as open trials, the public announcement of verdicts, reasonable media oversight, and the evaluation and impeachment of justices, in order to prevent judicial independence from developing into judicial despotism or corruption. In China, judicial independence is a concept that has long been opposed, receiving widespread criticism after the founding of the People’s Republic of China (PRC) in 1949.4 However, in the drafting of the 1954 Constitution, various opinions were incorporated, and the principle of judicial independence was ultimately adopted, with Article 78 stipulating that “the People’s Courts shall conduct independent trials, subject only to the restrictions of the law.” Nonetheless, during the 1957 antirightist campaign, judicial independence was widely denounced as a bourgeoisie principle “opposing the Party leadership,” and the 1954 constitutional provisions were nullified by the 1975 Constitution and were not restored until the 1979 adoption of the Law on the Organization of the People’s Court. When the Constitution again underwent a comprehensive revision in 1982, it was proposed that the work of the judiciary should be subject to the guidance of the party and the oversight of the People’s Congress, as opposed to the judiciary’s being absolutely independent, as set forth in the 1954 Constitution. Ultimately, Article 126 of the 1982 Constitution stipulated that the People’s Court shall exercise independent judicial authority in accordance with the provisions of the law and free from the interference of administrative departments, social organizations, or individuals.

Thus, while administrative departments, social organizations, and individuals were precluded from intervening in the judicial process,5 this provision provided legitimate channels for the organs of state power, political parties, and procuratorates to intercede in the judicial work of the court. It is therefore apparent that the current Constitution fails to establish the principle of judicial independence, for Article 126 merely 4 Cai Dingjian 蔡定剑, Lishi yu biange 历史与变革 [History and Changes: The Process of the Construction of the Legal System of New China]. (Beijing: China University of Political Science and Law Press, 1996), 33. 5 Zhongguo xianfa jingshi 中国宪法精释 [Selected Explanations on China’s Constitution], ed. The Political Group, Research Office, General Office, NPC Standing Committee, China Democracy and Legal System Publishing House, 1996), 278–279.

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establishes a “quasi-judicial independence.” This deduction is clearly confirmed in Article 135: In handling criminal cases, responsibilities shall be distributed amongst the people’s courts, people’s procuratorates, and public security organs, which shall coordinate with and restrict one another in order that the law may be effectively and efficiently enforced.

This requirement of mutual cooperation among the three bodies clearly conflicts with the principle of impartiality, which is the core of judicial independence. Although the current Constitution does not fully confirm the principle of judicial independence, as a comprehensive revision of the 1978 Constitution, it does, to a certain extent, reflect the spirit of judicial independence, containing significant and relevant amendments to the 1978 Constitution. These are evinced in the following examples: First, according to Article 28 of the 1978 Constitution, representatives of the National People’s Congress (NPC) possess the authority to examine the acts and judgments of the State Council, the Supreme People’s Court, the Supreme People’s Procuratorate, and all of the ministries and commissions under the State Council. Article 73 of the current Constitution eliminates the power of NPC representatives to question the judgments of the Supreme People’s Court and the Supreme People’s Procuratorate in order to guarantee their independence in exercising their judicial and prosecutorial authority under the law.6 Second, the Constitution of 1978, as well as those preceding it, required that the people’s courts at each level of government report to the people’s congresses of the same level. This rigid stipulation is nullified by Article 128 of the current Constitution, which distinguishes between judicial organs and administrative departments and defines the relationship between upper and lower judicial bodies. This stipulation has also helped to promote the independent image of the people’s courts, for when the chief justices of courts are required at different levels to report to the people’s congresses in the same manner as do senior

6 Ibid., 224. The existing provisions that maintain or expand the practice of subjecting the courts to the examination of local government authorities run counter to the original intention of the Constitution.

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administrative cadres, people both domestically and internationally will question the veracity of China’s judicial “independence.”7 Due to the inadequacy of the current Constitution with regard to judicial independence and the institutional guarantee thereof, it is an incontrovertible fact that China does not, at present, possess an independent judiciary. This is most glaringly apparent in three areas. First, China’s lack of an independent judiciary is evinced in the relationship between the judiciary and the party leadership. Party committees at different levels of government have consistently supervised and coordinated the work of public security, procuratorial, and judicial organs, constituting the institutional equivalent of “one parent having three children.” Although the practice of party committees examining and approving individual cases is already on the decline, courts must still seek the approval of party committees on certain major cases. At the same time, a number of party cadres are still of the philosophy that judicial organs, rather than serving justice and protecting rights, are mere instruments of dictatorship or the extension of State power. Second, the challenges confronting the establishment of judicial independence are also seen in the relationship between the courts and the people’s congresses. Article 3 of the current Constitution stipulates the oversight of judicial organs by the people’s congresses. This is as it should be. However, because Article 126 of the Constitution does not preclude the prior intervention of the people’s congresses in judicial proceedings, representatives of the people’s congresses have frequently become involved in the proceedings of individual cases with negative results. Finally, the issue of regional protectionism poses a challenge to China’s establishment of judicial independence. According to the provisions of the current Constitution, the people’s courts at various local levels are established according to administrative districts and are 7 The preservation of the image of judicial independence, as related to citizens’ recognition of and faith in the independence of judicial organs, is fundamental to the actual realization of judicial independence. Measures taken to establish a strong domestic and international image of judicial independence include the exchanging of judges’ military uniforms for legal robes. A strong advocate of such practices, Unas Grimaden argued that in the course of establishing judicial independence, mundane details, including outward appearances, must not be overlooked. According to Grimaden, courts and judges must also appear to be independent. See Judicial Impartiality and the Guarantee of Rights, ed. Human Rights Research Center of the Peking University Law School (Beijing: China Legal Publishing House, 2001), 154.

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created, supervised, and monitored by the corresponding level people’s congresses. Because the human, financial, and material resources of local-level courts are controlled by local authorities, despite China’s single unified system of governance, the judiciary has been unable to gain independence from the local governments. This growing trend toward regional protectionism has severely hindered the unification of China’s economic and legal systems. 2. Judicial Independence and the Party Leadership The relationship of judicial independence and the leadership of the party is an issue of fundamental significance in the establishment of the principle of judicial independence and the reform of the relevant political structure. Historically, the principle of judicial independence has been inconsistently reflected in Chinese constitutional law as a result of vacillations in the recognition and comprehension of this issue at different periods. In reality, the approval of judicial independence and the maintenance of party leadership are compatible, for according to the report of the Sixteenth National Congress of the CPC, The leadership of the Party primarily refers to its political, ideological, and organizational leadership. The Party exercises leadership over society and state through the formulation of major policies, the proposal of legislation, the recommendation of high-level cadres, the publication of ideological propaganda, the support of Party organizations and members, and the maintenance of lawful state power.

The functions of the judiciary are separate from those of the legislative and administrative organs of government. In its establishment of law and proposal of future policy, the legislature depends upon the party for input and guidance. While administrative functions are primarily concerned with the implementation of law, they also encompass areas not directly regulated by law, as well as the legal authorization of administrative regulations. Thus, due to the nature of the administrative operations of government, the leadership of the party is also required. The judiciary, however, is charged with the task of adjudicating individual cases based on established laws in order that the law, which has been formulated under the guidance of the party, may operate to determine rights, obligations, and responsibilities. The law must possess concrete authority, stability, and universality in order

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that the people’s faith in its efficacy may be maintained and legal order established. Thus, the purpose of the judiciary is realized in the strict application of established laws, integrating party policy and the popular will, as opposed to accepting the new, provisional proposals of various-level party committees. Therefore, in conducting independent trials based solely upon established law and free from external influences, judicial organs must implement fastidiously the party policies enshrined in existing laws, which prevents them from escaping from party leadership. Of course, this independent operation of judicial organs only applies to actual judicial proceedings. With regard to the structural organization of the judiciary, the party may exercise its leadership through “the recommendation of high-level cadres” and may, through “the publication of ideological propaganda” and “the support of Party organizations and members,” assist members of the judiciary in establishing strict measures of law enforcement and appropriate professional codes of conduct, as well as measures to prevent judicial corruption. Thus, it may be seen that not only is judicial independence consistent with the leadership of the party, but the two are interdependent. That is to say, the party provides the “political, ideological, and organizational” support necessary for the realization of judicial independence. Similarly, the effective implementation of party “leadership over society and state” depends upon the independent and impartial enforcement by judicial organs of the law, which is reflective of party policy, in order that the party may guarantee that its policy is carried out at all levels of state and society. This argument is based on theoretical logic. The practical issue of whether or not judicial independence will ultimately weaken or conflict with party leadership is of great concern to many parties; however, it will be seen that this concern is ultimately unfounded. First, based upon the fundamental value of judicial impartiality, judicial independence is a structural mechanism that conforms to a nation’s system of constitutional government. Relative to the system under which it is established, judicial independence does not imply that the judiciary may transcend the structural arrangement of the constitution or the provisions of law to intervene in political or constitutional affairs. In China, the establishment of judicial independence is for the purpose of upholding the authority of the people’s courts to conduct independent and impartial criminal, civil, and administrative trials in accordance with law. Even in the case that the policies and principles of the party create constitutional contradictions, according

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to the Constitution, these must be resolved by the NPC or its standing committee rather than investigated by the people’s courts. At the same time, the constitutional establishment of the principle of judicial independence does not require a comprehensive revision of the current Constitution, nor does it necessitate the adoption of a system whereby the common or constitutional courts conduct constitutional oversight. While it is apparent that China’s system of constitutional oversight must be strengthened, the state must adopt a model of constitutional oversight that accords with its system of constitutional governance. In China, the system of constitutional oversight must conform to the fundamental political system of the state (i.e., the People’s Congress system). Even when the judiciary is responsible for conducting constitutional oversight, it is universally recognized that political affairs are not subject to judicial review. Second, judicial independence fundamentally requires that judges adjudicate cases impartially and in accordance with universal law, not submitting to external influences that may alter the evidence or outcome of a case. Judicial independence does not, however, require the political neutrality of judges, for judges possess the same freedoms and rights as common citizens and, thus, may hold membership and participate actively in a political party.8 In the United States, where the principle of judicial independence is most actively and thoroughly implemented, federal judges may “bring their political loyalties to the court,” and even Supreme Court justices are not expected to renounce their political party affiliations but often will wait to retire until their party’s presidential candidate successfully takes office in order to guarantee that their party’s interests are represented in the Court.9 In China, the overwhelming majority of judges are CPC members, belonging to the party groups within the court. There is no reason to doubt that their

International documents on judicial independence do not preclude judges from joining or holding membership in a political party, but rather restrict the scope of their political activities. This international standard is manifested in Article 28 of The Universal Declaration on the Independence of the Judiciary, which stipulates that “a judge cannot be an active member of or hold any position in his political party.” According to Article 38 of the International Bar Association’s Minimum Standards of Judicial Independence, “Judges shall not hold a position in any political party.” Of course, since these two documents are not international law, they are not legally binding. 9 See also Yingmeidefasiguo fazhi gaikuang 英美德法四国法制概况 [A Brief Survey of the Judicial Systems of the US, the UK, Germany, and France], comp. the Judicial Reform Group of the Supreme People’s Court, trans. and ed. Han Sulin (Beijing: People’s Court Publishing House, 2002), 107–109. 8

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loyalty to the party and the people will remain strong following the establishment of judicial independence. Here, it is recommended that the system under which the party committees and the political and legal councils at the provincial and subprovincial levels oversee the daily work of the local courts be abolished in order to ensure that local-level people’s courts may independently implement the law based upon party policies and principles and prevent local party organizations from issuing “new” provisions for each case under trial; in this way, the unity of the party leadership will be maintained. 3. Judicial Independence and the People’s Congress System The structural relationship between judicial independence and the People’s Congress system is of fundamental significance to the realization of judicial independence and the reform of the current judicial system. Nonetheless, this tremendously important theoretical issue has yet to be explored in depth within academic circles; this “theoretical negligence” is impermissible. As stipulated in the Constitution, the People’s Congress system is China’s fundamental political system. Two fundamental issues arise with regard to judicial independence and the People’s Congress system: (1) Does a conflict of principles exist between judicial independence and the People’s Congress system? (2) Does the People’s Congress system preclude the reform of the current judicial system? 3.1. The Issue of Principles The fundamental principle of the People’s Congress system is clearly defined in the second and third articles of the current Constitution.10 According to Section 3 of Article 3, “The administrative, judicial, 10 Sections 1 and 2 of Article 2 of the current Constitution state that “the entirety of the State power of the People’s Republic of China is vested in the people. The National People’s Congress and local level people’s congresses are the organs through which the people exercise State power.” Article 3 states that “the State organs of the People’s Republic of China operate according to the principle of democratic centralism. The National People’s Congress and local level people’s congresses shall be established through democratic elections. They shall be accountable to and monitored by the people by whom they are elected. The administrative, judicial, and procuratorial organs of the state are established, maintained, and monitored by the people’s congresses. The separation of the functions and powers of central and local organs of governance shall accord with the principle of unleashing the full potential of local governments under the unified leadership of the central government.”

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and procuratorial organs of the State are established, maintained, and monitored by the people’s congresses.” The 1954 Constitution, which first established the principle of judicial independence, did not contain such a stipulation. Although in Western states the representative branch of government does not oversee the establishment of the organs of the judiciary, it does not necessarily follow that the creation of the judiciary by the representative organs of government conflicts with the principle of judicial independence. There is the tendency to assume that because the Constitution clearly stipulates that the judicial organs of the state should be accountable to and supervised by the people’s congresses, the people’s courts are, according to the current Constitution, subordinate to the people’s congresses; thus, many question whether judicial independence can be achieved without constitutional revision. In the views of the authors, the relationship between the people’s courts and the people’s congresses as defined in the current Constitution does not, in actuality, conflict with the principle of judicial independence. First, the accountability of the people’s courts to the people’s congresses as stipulated in the Constitution is necessary in order that the judicial organs remain accountable to the people. The administration of justice is, in essence, the application of law by judicial organs on behalf of the people in the adjudication of disputes; when the judiciary is not accountable to the people, it deviates from its fundamental function, inevitably countermanding the will of the people. Even in the United States and Germany, where judicial independence is rigorously upheld, the belief that judicial organs are accountable to the people and, as such, hold a certain degree of political responsibility is deep rooted and widely held,11 which is to say that in performing their functions, judicial organs must assume certain obligations and fulfill certain responsibilities to the people. More specifically, this judicial responsibility is manifested in two respects: (1) in the accountability of judicial organs to the public, expressed in public accessibility to and transparency in all aspects of judicial proceedings, including trials, rulings, and evaluations of judges, as well as the regular assessment of See Yingmeidefasiguo fazhi gaikuang, 82–83, 91, 94, 472–473; Charles Merriam, American Political Ideology: Studies of the Development of American Political Ideology, 1865–1917, trans. Zhu Cengwen Commercial Press, 1984), 111–114, 123–125; Xin Chunying 信 春鹰 Gongfa 公法 [Public Laws], vol. 3 (Beijing: Legal Press, 2001), 24, 226. 11

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judges by constituents and (2) in the accountability of judicial organs to the representative organs of government, evinced in the rigorous adherence of judicial organs to the laws formulated by the people’s representative organs and the right of representative organs to remove from office those judges who have violated the law or neglected their duties.12 In China, power is entirely vested in the people, and the people’s congresses are the organs through which the people exercise state power. Thus, in stipulating the accountability of the people’s courts to the people’s congresses, the Constitution is, in fact, guaranteeing that the judicial organs remain accountable to the people. Therefore, those who assert that judicial independence cannot be realized so long as the judiciary is subject to the oversight of the People’s Congress system lack an understanding of the fundamental nature of the judiciary and judicial independence. Second, the people’s congresses’ oversight of the people’s courts as stipulated by the Constitution is completely consistent with the aim of judicial independence, which is the realization of judicial impartiality, rather than the pursuit of independence simply for the sake of independence. Reasonable oversight is necessary to prevent the abuse of judicial authority. The people’s congresses may legitimately oversee the work of judicial organs to the extent that they do not attempt to 12 According to Max Rheinstein, public opinion is one of the most effective means of controlling judicial activities. Transparent court proceedings, the publication of court records, the publication of professional periodicals, free newspaper distribution, and electronic media all contribute to the “political responsibility of U.S. judges” (see Yingmeidefasiguo fazhi gaikuang, 472–473). Supreme Court Justice Anthony M. Kennedy argued that in the United States, the rule of law requires that judicial verdicts be publicly broadcast, debated, and critiqued (see Xin Chunying, Gongfa, 228). The system of the regular review of judges by constituents is practiced in Japan, as well as in certain states in the United States. In the United States, constituents regularly elect judges. According to Article 79 of the Japanese Constitution, those appointed to the Supreme Court are examined by the people during the first general election of members of the House of Representatives following their appointment and are again reviewed every ten years after their appointment during the first general election of members of the House of Representatives; a judge may be removed from office by a majority vote. Both the Anglo-American and the continental European legal systems require judges to fully enforce legislation ratified by the legislature. In countries practicing a system of common law, written law takes precedence over case law in adjudicating legal disputes. In Germany, a judge may be subject to discipline who fails to enforce widely recognized common laws, applies an invalid legal provision, or disregards a binding verdict of the federal constitutional court (see Yingmeidefasiguo fazhi gaikuang, 468–469). In China, the accountability of local judicial organs to the local people’s congresses provides for the removal of the chief justice of a local court by the corresponding level people’s congress.

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supplant the judicial authority of the courts, intervene in judicial proceedings, or damage the independent image of the courts. Specifically, the people’s congresses’ oversight of the courts must, first, be conducted in an indirect and concomitant manner—that is, the people’s congresses must not, prior to the conclusion of a case, intervene in judicial proceedings, independently adjudicate cases, or supplement or supplant court rulings. Second, the oversight of the courts by the people’s congresses must be conducted in a manner distinct from that of administrative organs, in order that the courts’ independent image is not damaged through creating the impression that the courts must follow the directives of the people’s congresses.13 These fundamental requirements of judicial independence accord entirely with the spirit and stipulations of China’s current Constitution. The creation, management, and oversight of the judicial organs of state by the People’s Congress system do indeed reflect the subordinate status of the judiciary under the current Constitution, but this is imperative to the state’s implementation of the principle of democratic centralism. However, in establishing the principle of constitutionalism, the system of democratic centralism essentially emphasizes the unity of state authorities and the legitimate origin and practice of state power, rather than denies the logical division of state operations. Thus, according to constitutional stipulations, judicial functions must be performed by the people’s courts, and the people’s congresses are precluded from adjudicating criminal, civil, or administrative cases. Thus, the subordinate status of the people’s courts to the people’s congresses does not, in actuality, infer that the relationship between the two is one of superiority and inferiority, but merely expresses the

13 As previously stated, the current Constitution excludes the 1978 constitutional provision granting representatives of the NPC the authority to investigate the work of the Supreme People’s Court and requiring local people’s courts to report to the corresponding local-level people’s congresses. This provision was removed in order to differentiate between the oversight of administrative and judicial operations. The authors also propose that provisions concerning the investigation of court proceedings by representative organs be removed from supplementary legislation, for such “inquiries” are often conducted in a “severe” manner, resulting in the embarrassment of the courts and the damage of their reputation and public image. At present, the chief justices of local-level courts are required to report on their work at the plenary sessions of the local people’s congresses. The authors propose that the courts instead “submit” a work report to the congresses for recommendation rather than vote. In this way, any improper conduct of the courts may be corrected through the adoption of appropriate legislation or resolutions.

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unequal status of the two. The people’s congresses, in exercising the entirety of state power on behalf of the people, occupy the supreme position in the state political structure. The various levels of courts are produced, managed, and overseen by the people’s congresses and, as such, may not, conversely, restrict or investigate the legislative work of the people’s congresses. Judicial independence seeks to conduct established judicial proceedings free from external influences, not to review the legislative functions of the legislative organs.14 Thus, it is not impossible to achieve judicial independence despite the imbalance in the relationship between these two organs of government. This was, in fact, embodied in the 1954 Constitution, which established judicial independence under the principle of democratic centralism. 3.2. The Issue of the Court System The establishment of the people’s congresses and people’s governments at various levels, from the provinces through to the local village level, is stipulated in articles 95 and 112 of the current Constitution. Article 124 establishes the Supreme People’s Court and the various local-level people’s courts, as well as the military courts and other special courts. In Section 2 of Article 101 is stipulated the authority of the people’s congresses above the county level to elect to and remove from office the chief justices of the people’s courts and the people’s procuratorates at the corresponding level. According to Article 104, the standing committee of local people’s congresses at or above the county level shall oversee the work of the same-level people’s governments, people’s courts, and people’s procuratorates. In Article 128 is declared the accountability of the Supreme People’s Court to the NPC and its standing committee, as well as the accountability of the various local-level people’s courts to the organs of the state power that created them. These constitutional provisions constitute China’s current court system, according to which the various local-level people’s courts are established within the existing administrative districts and are created by, responsible to, and supervised by the corresponding local-level people’s congresses.

14 Judicial independence is reflected in the judicial review of legislation. Judicial organs are precluded from fulfilling this function when the legislature obstructs judicial independence by prohibiting the judicial review of legislation.

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Moreover, the current system stipulates that local-level judges be appointed and supervised by corresponding-level party committees and that judicial officials be appointed to and removed from office by the standing committees of the local-level people’s congresses; the finance committees of local-level governments are individually responsible for the appropriation of local court funds. In other words, the local-level party committees, people’s congresses, and people’s governments control the entirety of the human, fiscal, and material resources of local-level people’s courts, the results of which are seen not only in the dependency of the courts on local authorities but also in the widespread regional protectionism. There are those who propose that the system of administrative districting of local courts be replaced by a system of fixed judicial districts, with each district consisting of a high-, middle-, and grassroots-level court established by the NPC or the NPC Standing Committee. Others argue for the preservation of the existing system of administrative districting of courts, proposing that high-level courts be established by the NPC or its standing committee and mid-level and grassroots courts be founded by the provincial people’s congresses or their standing committees. Still others, while advocating the maintenance of the system of administrative districts, propose the establishment of a transdistrict Supreme Court and highcourt branches, or circuit courts, to try transdistrict cases and resolve the issue of regional protectionism. In the opinion of the authors, the last of these proposals is impractical, for circuit courts or branch courts of the Supreme Court and high courts would not constitute independent trial courts, but rather if established, would raise the level at which cases are initially tried and, in effect, would lead to the issuance of final rulings in the initial trial of transregional cases. Even less feasible is the establishment of circuit courts composed jointly of high- and low-level judges; these courts would be impotent given the high degree of assimilation in Chinese society. Furthermore, in the absence of a specialized system of appeals, the proposed structure would be fundamentally incapable of resolving the issue of administrative appeals. Thus, a reform of the current judicial system must be conducted on the basis of the first two proposals in order that judicial independence might be institutionally guaranteed. However, both of these propositions entail the adjustment or transformation of the current relationship between local-level people’s courts and people’s congresses. Thus, the question arises of whether such systematic reforms might be rejected by the local-level people’s

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congresses. In actuality, based on the fundamental nature of the local people’s congresses and relevant constitutional provisions, such structural reforms are unanimously demanded by the Constitution and the People’s Congress system themselves for the following reasons. First, the local-level people’s congresses are the political organs through which the people exercise state power locally and achieve local autonomy,15 and thus, it is appropriate that these should be responsible for generating local executive organs, or people’s governments; however, this function does not include the creation and control of judicial organs. According to Section 3 of Article 3 of the Constitution, The separation of the functions and powers of central and local organs of governance shall accord with the principle of unleashing the full potential of local governments under the unified leadership of the central government.

This stipulation provides “the basic principle for the separation of central and local government authority.” However, within China’s unitary state structure, this separation of local and central government authority only applies to the economic, social, and cultural realms, necessarily excluding judicial affairs, for only in these areas is it possible to 15 The Chinese Constitution does not explicitly stipulate the autonomous governance of general administrative regions, providing only for the self-rule of autonomous minority regions and the establishment of special administrative regions as necessary. Few scholars have explored the potential structure of the “regional autonomy” of general administrative regions. However, given the current constitutionally established system of administrative districts and the function and authority of local political organs, the autonomous nature of the local people’s congresses cannot be denied. According to Chinese constitutional scholar Xu Chongde, “Local administrative officials are appointed by the local organs of state power rather than by the central government. Thus, local organs of state power manage local affairs with relative autonomy. Thus, China’s regional autonomy is, in actual practice, already established.” Xu Chongde 许崇德, Zhongguo xianfa 中国宪法 The Chinese Constitution], rev. ed. Beijing: China Renmin University Press, 1996), 244. Celebrated legal scholar Zhang Youyu also argued that “in China, the separation of powers refers not only to the distinction between the authority of the central government and general administrative regions, but also to that of the central government and autonomous minority regions. The co-existence of these two differing structures of separation of power is uniquely Chinese.” Zhang Youyu 张友渔, Xianfa luncong 宪法论丛 [Perspectives on the Chinese Constitution] Beijing: Qunzhong Publishing House, 1986), 543. The separation of powers entitles regional authorities to a certain degree of autonomy. The existence of regional autonomy cannot be denied simply because state organs implement the principle of democratic centralism. As Lenin pointed out, “Democratic centralism does not preclude the autonomous rule or regional self-governance of ethnic minorities, but rather, under certain economic and social circumstances requires it.” The Complete Works of Lenin, vol. 24 (Beijing: The People’s Publishing House, 1986), 149.

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“unleash the full potential of local government.” The administration of justice requires that the people’s courts apply the law stringently in conducting criminal, civil, and administrative hearings, upholding “the uniformity and dignity of the socialist legal system” (Article 5, Section 2); thus, it is seen that the conditions under which the judiciary operates are not conducive to the realization of regional autonomy and the unleashing of the full potential of local government. The Constitution clearly identifies the organs of autonomous minority governance within autonomous regions. According to Article 112, “The local people’s congresses and people’s governments of the autonomous regions, prefectures, and counties constitute the organs of autonomous minority governance”; this stipulation explicitly excludes the people’s courts and procuratorates. The authority of these autonomous district people’s congresses is more extensive than that of their common counterparts. Since we have already established that local-level people’s courts do not constitute local organs of autonomous governance but rather carry the responsibility of upholding “the uniformity and dignity of the socialist legal system,” then it is apparent that were high, middle, and grassroots courts not created by the local people’s congresses above the county level, such a practice would accord both with the autonomous governance of local organs of state power and the principles and provisions of Article 5 of the Constitution.16 Second, Article 3 of the Constitution stipulates that “all administrative, judicial, and procuratorial organs of the state be created and supervised by the people’s congresses.” However, this provision does not indicate that local judicial organs must be created by the people’s congresses at the corresponding local levels. According to Article 128, The Supreme People’s Court is accountable to the National People’s Congress and its Standing Committee. Local people’s courts are accountable to the organs of State power by which they were created.

Again, this provision does not require that local people’s courts be accountable to the organs of state power of the same level, but rather 16 It is apparent today that the drafters of the Constitution did not exercise sufficient theoretical or logical perspicacity in establishing the current court system whereby local-level courts are created by corresponding-level people’s congresses. However, given the conditions under which the current Constitution was drafted (i.e., the highly centralized political structure and the national planned economy), the issue of the consistency of the rule of law and the market was either minor or nonexistent, which may explain the disregard for what was then a “purely theoretical” question.

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to the organs by which they were created. Thus, the reform of the existing judicial structure does not necessitate the revision of the fundamental principles of the People’s Congress system. Furthermore, the creation of local-level courts by the provincial or national people’s congresses constitutes an appropriate and natural course for the centralization of judicial organs in compliance with the principle of democratic centralism stipulated in Article 3 of the Constitution. 4. Suggestions for Constitutional Revision Having explored the fundamental theoretical issues concerning the establishment of judicial independence in China, the authors will, in what follows, offer some insight into the specific constitutional revision necessary for the establishment and preservation of judicial independence. 4.1. Establishing the Principle of Judicial Independence In order to establish the principle of judicial independence within the current Constitution, the following constitutional provisions must specifically be revised: 1. Article 126: “The People’s Court shall exercise independent judicial authority in accordance with the provisions of the law and free from the interference of administrative departments, social organizations, or individuals.” This provision does not preclude the interference of the people’s congresses or the party and, thus, does not fully reflect the principle of judicial independence. In actuality, this stipulation has created numerous practical problems and, thus, must be amended in order that it may impel the “establishment of a socialist state under the rule of law.” Furthermore, this provision must be revised so that the principle of judicial independence may be implemented in accordance with China’s international obligations. Article 14 of the United Nations’ International Covenant on Civil and Political Rights, which China signed in October of 1998, requires that “everyone shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law”—that is, the covenant requires that state judiciaries be independent. China has already signed the covenant, and it must

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now be ratified by the Standing Committee of the NPC. Thus, the complete establishment of the principle of judicial independence is an objective requirement for the adoption of the covenant. 2. Article 135: “In handling criminal cases, responsibilities shall be distributed amongst the people’s courts, people’s procuratorates, and public security organs, which shall coordinate with and restrict one another in order that the law may be effectively and efficiently enforced.” As previously indicated, the requirement that the work of the people’s courts, procuratorates, and public security organs be coordinated is the remnant of a “united dictatorship” and, violating the principle of judicial independence, is damaging to China’s international and domestic image with regard to human rights. Moreover, the specific procedures for criminal trials need not be explicitly stipulated in the Constitution but should rather be defined within the Code of Criminal Law. Therefore, the authors suggest that this article be removed and replaced with a provision protecting judicial independence. With regard to the revision of Article 126 of the current Constitution, the authors offer the following proposals. Proposal 1: The people’s courts shall conduct independent trials, subject only to the provisions of the law. Proposal 2: The people’s courts shall exercise independent judicial authority, subject only to the provisions of the Constitution and the law. Proposal 3: The people’s courts shall exercise independent judicial authority in accordance with the law and free from any external interference.

Proposal 1 restores the 1954 constitutional provision on judicial independence. Proposal 2 replaces the “shall conduct independent trials” of Proposal 1 with “shall exercise independent judicial authority,” including “the Constitution,” which makes the second proposal more complete and accurate and constitutes a relatively ideal proposal for the establishment of judicial independence. Proposal 3 contains only minor changes in phrasing, most significantly replacing the existing “free from the interference of administrative departments, social organizations, or individuals” with “free from any external interference.” The addition of “in accordance with the law” elucidates the obligation of adhering to the law, which restricts the judicial authority of the courts. It also alleviates existing concerns regarding the potential for

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courts, once the principle of judicial independence is established, to intervene in constitutional and political affairs; thus, of the three, the third proposal is most practical. Some may argue that ultimately, judicial independence implies the independence of judges, for the constitutions of many states contain provisions such as “judges shall conduct independent trials subject only to the provisions of the law.” Thus, in the definition of the principle of judicial independence, some would argue that people’s courts and judges are interchangeable. However, the authors consider this substitution imprudent for several reasons. First, the constitutions of countries that stipulate the independence of judges also stipulate the separation of the powers of the state, which assumes an independent court. However, China does not implement the principle of the separation of powers but of democratic centralism. Thus, it must be explicitly stated that the people’s courts exercise independent judicial authority. Second, China’s judges themselves will not, in the foreseeable future, meet the requirements for independence; thus, taking into consideration China’s current domestic conditions, it would not be appropriate to advocate the independence of judges. Third, the stipulation of the independence of the courts, rather than negating the independence of the judges, precludes external interference; the latter may be established upon the establishment of suitable conditions. Finally, the establishment of the independence of the courts is conducive to the reform of the current judicial system. Nonetheless, the Constitution should define the status of judges, in order to provide a constitutional basis for the formulation of supplementary law pertaining specifically to the role and function of judges. To this end, the authors offer two addenda to Article 126 of the Constitution. Proposal 1: Judges shall commit themselves to the law and to the uncovering of facts, and impartially adjudicate cases. The legal status and function of judges are guaranteed under the law. Proposal 2: Judges shall enforce the Constitution and the law in good faith, and impartially adjudicate cases. The legal status and function of judges are guaranteed under the law.

It is worth mentioning here that the stipulation of the obligations of judges in Proposal 2 is taken directly from Article 3 of the current Law on the Role and Function of Judges of the PRC, according to which, “Judges shall enforce the Constitution and the law in good faith, serving the people wholeheartedly.” Thus, it is seen that the statements

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“subject only to the provisions of the law” and “shall enforce the Constitution and the law in good faith” are already established within the existing Constitution and laws. 4.2. The Systematic Guarantee of Judicial Independence Reform of the current court structure—as well as of the management of the human, financial, and material resources of the court—is imperative to the systematic guarantee of judicial independence; this is commonly acknowledged within all sectors of Chinese society. Revisions should specifically focus on the following articles: 1. Article 101, Section 2: “The local people’s congresses at and above the county level shall possess the authority to appoint and remove from office chief justices and chief procuratorates of corresponding level people’s courts and people’s procuratorates. The appointment or removal of chief procurators of upper level people’s procuratorates shall be approved by upper level people’s congresses.” 2. Article 104: “The standing committees of local people’s congress at and above the county level shall deliberate on and resolve all major issues arising within their administrative jurisdiction, overseeing the operations of the corresponding local level people’s government, court, and procuratorate.”

The authors propose that Section 2 of Article 101, as well as the provision concerning the people’s courts and procuratorates in Article 104, be removed from the current Constitution. Although not within the scope of this thesis, challenges similar to those confronted in reforming the court system will be faced in the reform of the procuratorate system. A comprehensive reform of these systems will not be achieved overnight, and it is not feasible for the full range of reforms herein proposed to be immediately established within the Constitution. Rather, the structural reform of the system of the courts and procuratorates should be accomplished gradually through a series of relevant constitutional “deletions.” Moreover, these proposed deletions will not negatively impact or conflict with the operation of the existing local systems of the courts and procuratorates, for the aforementioned constitutional stipulations relate to local-level people’s congresses and their standing committees rather than to the local people’s courts and procuratorates. According to Section 3 of Article 124, “The people’s courts system is established in the law,” and Section 3 of Article 130 similarly stipulates that “the people’s procuratorates system is established

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in the law.” These two provisions constitute the constitutional basis for the continued operation of the existing systems of the courts and procuratorates in accordance with the Law on the System of the People’s Courts and the Law on the System of the People’s Procuratorates. Furthermore, these two stipulations provide constitutional legitimacy for the establishment of a new system following the deletion of the proposed constitutional provisions. China’s current Constitution lacks specific clauses safeguarding the finances of the people’s courts and the people’s procuratorates; thus, it is necessary to add a provision that protects the financial independence of judicial organs for the following reasons: (1) Reform of the current court and procuratorate systems should be conducted gradually. The initial establishment of measures preserving the financial independence of the people’s court and procuratorate systems is both feasible and necessary. (2) More than twenty years after the implementation of the Reform and Opening-Up Policy, current economic conditions are such that the central government may take measures to protect the financial resources of local-level people’s courts and procuratorates. If the central government encounters obstacles in implementing these reforms independently, these may be overcome through a system of allocation by the central government and conferral by local authorities. Thus, the proposed budgetary reforms are not implausible. (3) In a country such as China, which lacks a tradition of judicial independence, the constitutional establishment of judicial financial independence is, in practice, tantamount to a true “Declaration of Judicial Independence” and, thus, will greatly bolster judicial organs’ sense of their own independence, as well as their capacity to withstand administrative interference. (4) The constitutional establishment of the financial independence of the judiciary is common in nations that have yet to fully implement the rule of law. Finally, as previously suggested, Article 135 should be removed from the current Constitution and replaced by the proposed amendment. Based on the content of the seventh section of the third chapter of the current Constitution, the authors propose that the following amendment be adopted in order to guarantee the financial independence of the judiciary: “The state shall guarantee the financial independence of the people’s courts and people’s procuratorates in order that they may execute their duties effectively. The budgets of the local-level people’s courts and procuratorates shall be formulated uniformly by the central government.”

CHINA AND THE RULE OF LAW IN THE GLOBAL ERA* Zhang Wenxian Translated by Li Peichun and Kristin Lauria Introduction If we are to implement an effective strategy for the establishment of a socialist state under the rule of law, we must first grasp and adapt to the unique features that characterize the spirit and trends of our times. A variety of expressions are used to describe the current era (e.g., the knowledge economy era, the information era, the Internet era, the human rights era, and the era of ecological revival ). Each of these reflects one aspect of our times. In the author’s view, the term globalization most accurately and comprehensively summarizes the modern era, for it encompasses all of the characteristics of our times. The world is undergoing a historic transformation. Globalization is drastically altering the modes of production, lifestyles, and survival strategies of humankind and profoundly impacting the evolution of economic, political, and legal systems. In order to confront the multifarious challenges of the global era—whether they be economic, cultural, or educational or whether they be scientific, political, military, or diplomatic—we must cultivate global awareness and insight and develop a global outlook and approach. At the same time, the fundamental issues relating to the construction of a socialist state under the rule of law must be researched and resolved against the backdrop of globalization and within the framework of globalized administration. 1. The Fundamental Properties of Globalization Globalization is a comprehensive and multifaceted concept. It refers to the expansion of the scope of human activity and the range of

* The original version of this chapter was published in Jilin daxuexuebao 吉林大学 报 [The Journal of Social Sciences of Jilin University] 45, no. 2 (March 2005).

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human organization, from the local community to the nation state to the world. Globalization is an indicator of the comprehensive developmental trend of human civilization. While some consider globalization to be an economic trend, the author believes that, at the very least, globalization encompasses the following five areas: economics, public affairs, human rights, the environment, and the law. It is globalization in these five areas that has compelled China’s legal transformation. 1.1. The Globalization of Economics A decade ago, it was reasonable to suggest that economic globalization was merely a theoretical hypothesis and a future developmental trend. However, with the 1995 founding of the World Trade Organization (WTO) and China’s accession to that organization with one-fifth of the world’s population in 2001, globalization must be recognized as a present reality. On April 23, 2004, Nepal became the 147th nation to accede to the WTO, with 30 additional countries preparing to join at that time. The trade volume of WTO economies accounts for more than 97 percent of total global trade, constituting a significant demonstration of the expansion of economic globalization. The most fundamental indication of economic globalization is the establishment and continuance of an integrated international market, reflected in the following global trends: 1. The proliferation of “global factories,” evinced in the dispersal of product manufacturing plants across the globe. On June 11 of 2004, French and the China Aviation Industry Corporation signed an industrial cooperation agreement worth one hundred million US dollars, outsourcing the production of the Airbus A380; this was the first time a Chinese enterprise was involved in the manufacturing of an Airbus A380. With the rapid development of multinational corporations and regional trade groups has come the tightening of international ties based on a new international division of labor. 2. The significant reduction of tariffs obstructing the flow of trade in the international economy. According to statistics, the average tariff level among WTO members, currently at 6 percent, is expected to drop considerably in upcoming years. Tariffs in the domain of high technologies, such as computers, telecommunications equipment, and integrated circuits, may eventually be

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eliminated entirely. Additional barriers to trade, such as import quotas and licenses, will be increasingly limited until these, too, are ultimately removed. The unprecedented opening of domestic service industries to overseas investment, including telecommunications, banking, insurance, securities and futures, retail and wholesale, domestic trade, tourism, legal services, accounting, advertising, television and film, and education. The restrictions on foreign businesspeople will be gradually lifted. Currencies, commodities, technologies, and talents flow back and forth across national borders with greater freedom and speed. In conducting a study of European nations in November 2003, the author was impressed by the extent to which the nations of the European Union “while having national borders were borderless,” as national borders become increasingly symbolic. The integration of the international financial market evinced in the global optimization of capital and the increasing freedom of the movement of capital across borders and boundaries. According to World Bank and International Monetary Fund statistics, the transnational capital investment has, since the turn of the century, surpassed one trillion US dollars. The liberalization of economic activities. Economic liberalization is most fundamentally reflected in the liberalization of trade, including the trade of commodities, services, investments, and knowledge. At the same time, economic liberalization is manifested in the liberalization of production, consumption, and economic systems. Liberalization is the prerequisite and foundation for all trade and the essence of market economics. Trade and economic liberalization inherently include free and fair economic competition. The maintenance of free and fair trade is, in fact, the very purpose of the WTO, and to this end, it forbids the establishment of monopolies and opposes trade barriers, the subsidization of commodities, the dumping of surplus goods, and other restrictions on free and fair competition, especially governmental intervention in free competition.

1.2. The Globalization of Public Affairs Public affairs refers to all affairs of human civilization beyond the realm of economics, including cultural, educational, political, military, and

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diplomatic affairs. Following the internationalization and regionalization of public affairs during the last century, the transnational nature of public affairs has been increasingly trending toward globalization. The increasing globalization of public affairs is apparent from the following characteristics: 1. The growth of “human interests.” A rising number of universal human interests are transcending national boundaries: the eradication of poverty, population control, the maintenance of ecological balance, the sustainable exploitation of land and maritime resources, and joint space exploration. 2. The globalization of education. Transnational and global educational institutions are on the rise, as is the number of students studying abroad. Taking China as an example, a total of 702,000 Chinese students studied overseas between 1978 and 2003, and 619,000 foreign students studied in China during the same period; contrastingly, 117,300 Chinese students studied overseas during 2003 alone, and 77,700 foreign students studied in China during the same year. The globalization of education is having a profound impact on the greater trend of globalization. 3. The transformation of what were previously considered to be domestic affairs into international affairs. The expanding intersection and confluence of domestic and international public affairs has resulted in a rise in bilateral and multilateral cooperation within the international community as it becomes increasingly challenging to resolve issues independently within a single sovereign state. 4. The penalization of international money laundering and other economic crimes, the crackdown on drug production and trafficking, the control of illegal immigration, the fight against international terrorism, the participation in peacekeeping missions of the United Nations (UN), the prevention of the proliferation of weapons of mass destruction, arms control, and disarmament. 5. The democratization of international relations, according to which domestic affairs are resolved domestically and international and global affairs are resolved through fair and open consultation between nations. The democratization of international relations is mandated by the increasingly multipolar global structure and extends naturally from the procedures, techniques, and systems that comprise the democratic management of public affairs.

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1.3. The Globalization of Human Rights With the globalization of economics and public affairs has come a lateral blending of social activities and interactions. Against this backdrop has emerged the trend of globalized human rights issues. This globalization of human rights is prominently exhibited in the following areas: 1. The globalization of human rights issues. In the globalized era, human rights issues, wherever they may arise, garner international attention, being broadcast and analyzed by national media sources around the globe. Concerned countries and international organizations intervene to the extent that human rights issues are no longer considered purely to be political and legal domestic affairs, but rather are subject to international opinion and pressure. Examples include apartheid in South Africa, ethnic cleansing in the former Yugoslavia, and the abuse of Iraqi prisoners by US occupying forces. 2. The globalization of human rights theories and concepts. Originally emerging in the West, the concept of human rights, along with its definition and composition, is deeply rooted in the Western social framework. Over the course of the globalization of human rights, non-Western scholars have exhaustively examined issues relating to the origins, implications, and modes of the realization of human rights; this process has resulted in the expanded scope of, increased compatibility in, and diversified means of establishing human rights. The formulation of the three “generations” of human rights1 constituted a significant reform to the traditional theories on human rights. In the past, human rights referred specifically to the protection of individual liberties from the arbitrary interference of the state and embodied fundamentally Western notions of political and civil rights, such as the freedom of speech and the right of suffrage. These fundamental liberties have come to be recognized as the “first generation” of human rights. In the confrontation of the East and West over human rights, the East condemned the West for its sole pursuit of

1 In 1979, Karel Vasak proposed the notion of the three “generations” of human rights, with each generation embodying one of the three components of the slogan of the French Revolution: liberty, equality, fraternity.

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individual liberties, leading to gaping income disparities between rich and poor and social imbalance. Thus, the “second generation” of human rights incorporated such traditional socialist values as the rights to work, remuneration, and education. As the colonial era drew to a close and new independent countries were established, the call for greater international balance and overall development gave rise to the “third generation” of human rights, encompassing collective rights such as those to self-determination and development. It is apparent that had the concept of human rights developed within a single nation or region, it would not have been characterized by such vibrancy and exchange. Through the globalization of human rights, the desire for and awareness of human rights has spread across the globe, and the notion of human rights has gained widespread and deep-rooted acceptance, as is appropriate in the global era. 3. The globalization of human rights regulations. The international community has formulated a series of international laws on various aspects of human rights, which serve as guidelines for the drafting and revision of the human rights systems of individual nations and constitute an international standard against which the human rights records of individual states may be measured and with which all states should comply. These provide a solid foundation for the realization of the ideal of globalized human rights. 4. The multitiered institutionalization of human rights management. The first of these is human rights laws. Numerous international organizations are involved in the resolution of human rights issues; most prominent among such organizations is the UN, which plays a major role in international relations due to the size of its membership and the scope of its operations. The UN sponsors and contributes to multifarious human rights activities, adopting resolutions, formulating conventions, and supervising state actions on human rights. A number of UN subsidiaries also participate in human rights operations (i.e., the World Health Organization, the International Labor Organization, and the International Maritime Organization). The recently established International Criminal Tribunal is, in effect, a global human rights institution. With the rise of globalization and theoretical and practical mechanisms of global governance, numerous nongovernmental organizations (NGOs) have actively undertaken human rights work. The second tier of human rights management is comprised

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of regional human rights institutions. While the universalization of human rights institutions is broadly advantageous, as a result of the cultural differences and developmental disparities among nations, global consensus on human rights issues is not always readily achieved. Thus, a number of states sharing similar histories and cultural heritages have jointly established special institutions of human rights, and these regional systems have been relatively successful. Examples include the regional human rights systems established by the countries of Europe, the Americas, and Africa, respectively; among these, the regional human rights cooperation of European nations is particularly noteworthy. The third tier of human rights management constitutes the cooperation among countries and regions on human rights issues. In the absence of geographical proximity, a number of countries and regions have, nonetheless, cooperated on issues of human rights for historical or other reasons. 1.4. The Globalization of the Environment The environment is the source of human subsistence and development. Since the onset of the Industrial Revolution, developed and developing countries alike have expended massive amounts of natural resources and contributed increasingly to environmental pollution in the pursuit of economic advancement, and this state of affairs continues to spread. According to the Global Environment Outlook 2000 issued by the United Nations Environment Program (UNEP), since the 1992 UN-sponsored Earth Summit, a number of countries have successfully decreased the size of their “ecological footprint,” reducing their rate of environmental pollution and use of natural resources; however, the overall condition of the environment has consistently deteriorated. In industrialized countries, the emission of toxic pollutants and greenhouse gasses and the production of waste continue to rise as modes of production and consumption have persisted basically unchanged. In the numerous impoverished regions of the world, enduring poverty has resulted in the increased erosion of natural resources and the deterioration of the natural environment. It is expected that in the twenty-first century, the earth will suffer from greater drought, heat, and dryness, as well as unpredictable climate changes. Water shortages, soil erosion, deforestation, extinction, overfishing, and air pollution together constitute a global environmental crisis. The UNEP report indicates that we will confront a global fresh water shortage within the next twenty-five years

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and that the Middle East and Asia will ultimately compete for water resources. More than half of large European cities are overexploiting their water resources, and the groundwater in the world’s two most populated countries, China and India, is being rapidly depleted. The report also warns of the global environmental crisis resulting from the greenhouse effect. Long ago, Friedrich Engels cautioned against the degradation of the natural environment: Let us not, however, flatter ourselves overmuch on account of our human victories over nature. For each such victory nature takes its revenge on us. Each victory, it is true, in the first place brings about the results we expected, but in the second and third places it has quite different, unforeseen effects which only too often cancel the first. The people who, in Mesopotamia, Greece, Asia Minor and elsewhere, destroyed the forests to obtain cultivable land, never dreamed that by removing along with the forests the collecting centres and reservoirs of moisture they were laying the basis for the present forlorn state of those countries.2

As early as the 1960s, scientists warned of the impact of environmental desecration, arousing the attention of politicians in numerous nations. A report entitled Our Common Future, published in 1987 by the World Commission on Environment and Development, proposed a model of “sustainable development.” The 1992 UN Conference on Environment and Development (i.e., the Rio de Janeiro Earth Summit) adopted The Strategies for Sustainable Development, followed on June 14 by the passage of Agenda 21. In essence, sustainable development requires the comprehensive, multidimensional sustainable development of ecology, economy, and society. Aimed at coordinating the relationship between humankind’s economic activities and ecological resources, sustainable development seeks to achieve a sustainable balance between economy, population, resources, environment, and ecology. In 1997, the UN convened a special general assembly to review the progress made during the five years following the Earth Summit, particularly with regard to the implementation of Agenda 21. The World Summit on Sustainable Development was held in Johannesburg, South Africa, from August 26 to September 4 of 2002, during which the commitment to work continuously for the development of future generations was reaffirmed

2 Makesi engesi xuanji 马克思恩格斯选集 [Selected Works of Marx and Engels], vol. 4 (Beijing: Renmin Publishing House, 1995), 383.

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and the implementation of strategies for sustainable development was reexamined, resulting in the expression of both hopes and concerns. The globalization of the environment is twofold, comprising both environmental issues arising from globalization and global cooperation in solving these problems. The international community has adopted a series of measures in confronting the effects of globalization on the environment; the most prominent of these are as follows: 1. The signing of treaties by neighboring countries within a region or by countries sharing common environmental or resource-related interests outlining the rights and obligations of states regarding the exploitation of natural resources and the protection of the natural environment. 2. The formulation of a series of international legal documents as a result of the rigorous efforts of the UN and other international organizations restricting the actions of states in relation to the environment and national resources. 3. The monitoring of environmental protection by NGOs, such as the International Institute for Sustainable Development and Greenpeace, through the protest of the ecologically unsound behavior of nations and corporations, the promotion of domestic and international environmental legislation, and the popularization of environmental protection and sustainable development. 4. The arbitration of a number of international disputes concerning the environment and natural resources. Cases such as the U.S.-Canada Trail Smelter agreement and the resolution of the Bhopal gas leak by the United States and India constitute an indispensable international legal precedent for the mediation of international disputes relating to the environment, resources, and development.3 5. The establishment of the WTO as the most inclusive and influential international trade organization. Since its inception, the WTO has consistently worked to establish the connection between environmental issues and economics and trade, with free trade and environmental protection defined as fundamental guiding principles in the Marrakesh Agreement Establishing

3 Wang Xi 王曦, Guoji huanjingfa 国际环境法 [International Environmental Law] (Beijing: Legal Press, 1998).

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1.5. The Globalization of Law The trend toward the globalization of law is reflected most prominently in the following areas: 1. The denationalization of law. Rather than formulated by sovereign states, laws are increasingly established by “nonstate” entities, such as economic consortia, intellectual property rights organizations, environmental protection groups, and media associations (e.g., the compilation of the International Rules for the Interpretation of Trade Terms by the International Chamber of Commerce). 2. The “standardization” of law. Laws established by the UN or other international organizations or trade associations are used as references or models for the formulation of national legislation. 3. The “convergence” of law. This refers specifically to the trend toward adjusting legal regulations and systems guiding similar types of social interactions toward greater international uniformity, resulting not only in the convergence of the domestic laws of individual nations but also the conformity of domestic laws to international laws. This trend is most apparent in the realm of civil and commercial law. However, in the areas of commercial, financial, and economic law, the rapid pace and high degree of the convergence of law has exceeded expectations. 4. The “integration” or “internationalization” of law. This refers to the global synthesis of laws and regulations as the boundaries

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between international and domestic laws are increasingly blurred as a result of the universal belief of the precedence of international laws over domestic laws.4 This legal “integration” signifies the emergence of certain “global laws.” However, it must also be recognized that the globalization of law is, at present, still a trend, and this process does not imply that all areas of law will be globalized; it is neither necessary nor feasible to globalize laws that are of a “noninternational” or “nonforeign” nature. Moreover, the globalization of law does not indicate the decline or loss of national sovereignty but rather the enrichment and advancement of this concept. The diversity and individuality of national law should be preserved, and it is necessary to guard against and thwart individual countries or groups of nations from advancing political hegemony or legal imperialism under the pretense of promoting the globalization of law. 2. Advancing Legal Reform in the Globalized Era The globalization of economics, public affairs, human rights, law, and the environment presents both an opportunity and a challenge for China’s legal reforms. The Chinese legal system is, at present, undergoing its third major reform. All three of these legal transformations have occurred after the implementation of the Reform and Opening-Up Policy.5 China’s first wave of legal reforms was undertaken during the period from the late 1970s to the early 1980s and culminated in the 1982 revision of the Chinese Constitution. Convening in 1978, the historic Third Plenary Session of the Eleventh Central Committee of the Communist Party of China (CPC) officially denounced the unremitting class struggle of the Cultural Revolution and the catastrophic consequences thereof, among which were specifically identified the decimation of the legal system, the degradation of democracy, the overall trampling of human rights, absolute social chaos, and the overwhelming poverty of the masses. In addition, the Third Plenary Session established the policy 4 Che Pizhao 车丕照, Falü quanqiuhua—shixianshi? 法律全球化-是现实? [The Globalization of Law—A Reality?] (Beijing: Falü chubanshe [Law Press], 2001). 5 Launched by Deng Xiaoping in 1978, the Reform and Opening-Up Policy initiated China’s transition from a centrally planned economy to a market-based system.

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of the fundamental strategy of promoting economic development and proposed the strengthening of socialist democracy and the socialist legal system. During the year following the session, the Code of Criminal Law and the Code of Criminal Justice were enacted; constitutional reform (or, in effect, the redrafting of the Constitution) was initiated; and the Organic Law of the People’s Congress and Local People’s Congress System, the Electoral Law of the National People’s Congress, the Organic Law of the System of the People’s Courts, and the Organic Law of the System of the People’s Procuratorates were formulated or revised. The new Constitution was implemented in 1982. The new Constitution and supplementary legislation were designed to restore social order, safeguard human rights, and institutionalize and legalize democracy. More specifically, the 1982 Constitution stipulates the equal status of all citizens before the law; the inviolability of the personal freedom, dignity, and property of all citizens; the rights of citizens to communicate freely and privately; and the right and obligation of all citizens to work and rest, and so forth. Today, these stipulations of the 1982 Constitution, criminal code, and criminal justice code promoting democracy and fundamental human rights constitute nothing more than the common legal principles universally recognized by all civilized nations. Moreover, it is now apparent that these stipulations are incomplete, unspecific, and excessively restrictive. Nonetheless, at the time of their formulation, these regulations constituted a courageous theoretical breakthrough by the Chinese leadership of the time, and these remarkable political transformations heralded the dawning of a new era of the rule of law. China’s second wave of legal reforms was conducted during the 1990s and was epitomized in the establishment of a socialist market economy. China’s transition toward a commodity market economy began in the mid-1980s and following a landmark speech given by Deng Xiaoping in southern China in 1992, the Fourteenth Congress of the CPC Central Committee proposed the official strategy of building a socialist market economy. Adapting to the demands of a market economy and propelled by theoretical reforms and new ideologies, China rapidly abandoned the laws and policies formulated under the former centrally planned economic system, and this transformation was exemplified in the 1992, 1999, and 2004 revisions of constitutional provisions incompatible with China’s new socialist market economy and democratic politics and the trend toward globalization. For example, the preamble of the revised Constitution declares that China will, for a long time to come, continue in the initial stage of socialism and that

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the policies formulated by the party and state must correspond with actual social conditions. Additionally, these revisions established the legal status of the market economy; provided the constitutional basis for the construction and advancement of a socialist market economy; and replaced “State-run economy” with “State-owned economy” and, in so doing, clarified the relationships between the various organs of state and indicated that the state-owned economy need not be managed by the state, reflecting the spirit of the reforms through separating the rights of ownership and operation. The reformed Constitution stipulates that. in the initial stage of socialism, China shall maintain a fundamental economic structure comprised primarily of public ownership while simultaneously allowing for the diversification of economic ownership, within a system in which labor-based distribution co-exists alongside an array of alternative modes of distribution.

These provisions recognize nonpublic ownership (e.g., the private sector or a privatized economy) as an important component of a socialist market economy and clearly establish the state’s respect for and protection of human rights, the legal inviolability of private property, and so forth. In conjunction with these significant constitutional reforms, the central and local legislatures expedited the formulation of legislation consistent with the establishment of a market economy, concentrating specifically on the formulation of civil and commercial laws. Over the course of a few years, China drafted or revised a number of laws necessitated by the new market economy, including its maritime law, corporate law, contract law, guarantee law, negotiable instruments law, insurance law, trademark law, law against unfair competition, patent law, copyright law, securities law, partnership enterprise law, law on the protection of consumer rights, and inheritance law. China has also undertaken the formulation of a number of fundamental legal codes, including its property rights law and civil code. Embodied in the legislative spirit of these civil and commercial laws is the recognition, protection, and advancement of citizens’ rights, as well as the principles of protecting private property, freedom of contracts, fair competition, economic democracy, honesty and credibility, protecting the weak and vulnerable, maintaining social justice, and self-determination. These laws have created a relatively just, highly effective secure environment for the development of China’s socialist market

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economy. Moreover, they have played (and, in actuality, continue to play) an active role in regulating, directing, safeguarding, and promoting the development of the market economy. Propelled by the forces of globalization, China is currently undergoing its third legal transformation. Around the time of China’s accession to the WTO, a comprehensive reform and restructuring of China’s system of laws, rules, and regulations were undertaken in accordance with its WTO agreement, accelerating China’s integration into the international community and launching the third transformation of China’s legal system. The current legal restructuring includes the following fundamental components: 1. The reform of the legal and political systems in accordance with the goal of establishing a harmonious political civilization under the rule of law and drawing upon the successes of global civilizations in establishing the rule of law. First, based on the party’s proposition that all party, administrative, and judicial activities of the state be conducted in accordance with the rule of law, the relationship between the different-level party committees, legislative organs, law enforcement bodies, and judicial organs must be elucidated in order to improve the ability of legal organs to independently conduct their legislative, law enforcement, and judicial functions. Second, the relationship between the legislative, law enforcement, and judicial components of the legal system must be clarified, including the various departments and entities within the legal structure, and rigorous reform of the structure, organization, management, and operation of the legal system and process must be undertaken. These two reforms will improve the system of the people’s congresses, establish a government under the rule of law, advance the reform of the judicial system, and accelerate the establishment of constitutionalism. Third, the relationship between the rule of law and social autonomy, and the state and civil society must be precisely defined. A society characterized by equality, freedom, and consultation and centered on a market economy will inevitably lead to the establishment of the rule of law. For this reason, the Constitution must expand the scope and strengthen the guarantee of human rights while preventing the violation by state powers of individual rights and freedoms. The judicial organs must provide an effective means of protecting citizens’ rights.

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2. The restructuring of both internal and external aspects of the legal system and structure. With regard to external reforms, China must eliminate the man-made border between domestic and international law in order that Chinese policy, in the political and economic realms, may conform more completely to international law. In the era of globalized law, China must confront the fundamental issue of integrating domestic and international law. As a result of the deeply entrenched traditional “state-centric” notion of the absolute supremacy of national sovereignty, China has long arbitrarily affirmed the predominance of domestic laws over international laws. More recently, in adapting to the demands of greater openness toward and cooperation and exchange with the international community, China has drawn upon the legislative experience of a number of other countries. According to Article 2 of Section 8 of the General Principles of the Civil Law of the People’s Republic of China (民法通则). In the case that the stipulations of the civil law of the People’s Republic of China conflict with those of the international treaties to which the People’s Republic of China is party, the international treaty shall prevail except in the case that the People’s Republic of China has otherwise voiced the intention to retain said stipulations. In the case that neither the domestic law of the People’s Republic of China nor the international conventions to which the People’s Republic of China is party provide necessary provisions, international conventions shall be followed.” In Article 238 of Section 24 of the Civil Procedure Law of the People’s Republic of China, it is stipulated that “if an international treaty to which the People’s Republic of China is party contains provisions that differ from the provisions of this law, the provisions of the international treaty shall be followed except in the case that in signing said treaty, the People’s Republic of China has made reservations.” In practical application, these provisions declare the supremacy of international laws over domestic laws as they relate to China’s civil law. Article 72 of Section 10 of the Administrative Procedures Act (行致诉讼法) similarly stipulates that “if an international treaty to which the People’s Republic of China is party contains provisions that differ from the provisions of this law, the provisions of the international treaty shall be followed unless the People’s Republic of China has made reservations in the signing of said treaty.” Thus, it is clear that in the realm of administrative law, international law also takes

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zhang wenxian precedence over domestic law. This approach to legislation is judicious given the previously unparalleled proximity of domestic and international law in the globalized era. The principle of “compliance with international treaties” is universally accepted. In signing an international treaty, a nation signifies its commitment to fulfilling the obligations, as well as enjoying the rights, contained therein. The relationship between international and domestic law is generally handled by a nation’s legislative organs in one of two ways. First, through the formulation of new or the revision of existing legislation, international law is incorporated into domestic law, or second, it is specifically stipulated within relevant domestic laws that in the case of a conflict between the stipulations of domestic law and international treaties, the stipulations of said treaties shall take precedence over those of domestic law. This universally held supremacy of international over domestic law is the fundamental requirement for and reflection of the existence of an international community under the rule of law; the WTO also requires as much. China, as an open and civilized country that is in the process of developing the rule of law, should establish a respect for and image of compliance with the law. The internal reform of China’s legal system refers to the adjustment of the roles and functions of the various organs within the legal structure in order that the legal system may accurately reflect the realities of China’s socialist market economy, democratic politics, and the spirit of civilization, as well as realize the objective of building a socialist state under the rule of law, adapt to the current trend of globalization, and accord with the demands of the masses for greater rights. In the early days of the implementation of the Reform and Opening-Up Policy, no distinction between public and private law existed within the Chinese legal system, the primary purpose of which was criminal prosecution. This was the inevitable requirement of the common practice of class struggle and the implementation of a centrally planned economy. However, as class struggle gives way to economic construction and the planned economy is replaced by a market economy, it is necessary to emphasize the separation of public and private law under the Constitution; the central role of civil law, the purpose of which is to protect private rights, in the reconfigured socialist legal system; and the reform of the legal mechanisms regulating

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the economy, politics, and culture—namely, transitioning from a mandatory approach of regulating crime and punishment to one which integrates rights and obligations. 3. The transformation of the spirit of the law. The spirit of the law is the soul, or spine, of the legal system. It governs the manner in which legal institutions impact the economic, political, and cultural arrangements of society, restricting legal resources and the social allocation thereof. The traditional legal spirit was the product of the natural, or planned, economy, which was compatible with political despotism, or absolute authoritarian rule, and was the fundamental embodiment of the concept of domestic law. The modern legal spirit should be compatible with the market economy, democratic politics, and a spiritual and ecological civilization. It must accord with the logic, values, and principles characteristic of the essential developmental trend of globalization. Modernization and globalization constitute the two fundamental trends of the current era, and the two are fundamentally and inextricably linked. It is evident that China’s legal development will, in the future, reflect more completely the spirit of modernization, globalization, civilization, humanity, and unity and that these will be expressed more fully in every aspect of the operation of the legal system.

INDEX 1954 Constitution 212, 231, 237, 255, 262, 265, 270 1957 antirightist campaign 255 1975 Constitution 211, 231, 233, 255 1978 constitutions 211, 231, 233, 237, 256, 264 1982 Constitution 164, 167, 210–211, 231, 237, 255, 285–286 abolitionists 208–209 Absentee Ballots 174–175, 193 absolutism 228 accountability 10, 18, 29, 255, 262–263, 265 adjudication 239, 262 administrative politics 56 administrative taxes 145 agricultural 60, 63, 139, 141–143, 145–147, 149–150, 154, 156, 163 Albert Venn Dicey 241 allocation of funds 142 amendment 48, 62, 129, 137, 201, 213 n. 15, 220, 231, 233, 237, 243, 246, 250, 256, 273 American pragmatists 39 anarchy 103 ancient Greece 36, 43, 128, 206 n. 10 anonymous ballots 30, 198, 201 arbitrary charges, assessment, and fines 150 arbitrary charges 142, 150 arbitration 283 Aristotle 207–208 arms control 278 assembly 15, 44, 165, 168–171, 176, 179–181, 187, 189, 190–193, 206, 220, 282 assessments 28–29, 137, 142, 150, 154–155, 178, 200, 262 Auditing 190, 248 authoritarian 29, 227, 291 authoritarianism 11 n. 14, 111, 121, 227 autocracy 35, 40, 48, 207 autonomous governance 53, 146, 191, 267 n. 15, 268

autonomous regions 164, 188, 268 autonomous village governance 57, 163–165, 167, 172, 183–185, 193 autonomy 13, 26, 46, 51–52, 62, 64, 68, 140, 142, 154, 157, 164–166, 169–173, 179–187, 189, 191–194, 205, 226, 245, 249, 267–268, 288 balance of powers 10, 45, 56, 58, 71, 119, 121, 205 ballots 18, 175, 178, 193, 198, 201, 229 Benjamin Constant 43 Bhopal gas leak 283 bill of rights 251 bourgeoisie 4, 207, 255 boycott 82 branches of government 8, 10, 21, 203 brigades 144–145, 163 budget 17, 147, 151–152, 273 budget deficits 152 Bureau of Civil Affairs 167 n. 3, 175–176, 179 bureaucracy 15, 116, 147 bureaus of civil affairs 167 n. 3, 169, 175–176, 179 Cadre Training System 184, 188 cadres 5–7, 12, 14–15, 65, 84 n. 5, 101 n. 4, 109–110, 118, 134, 142, 145, 148, 149 n. 6, 171, 174, 177, 181–188, 190–191, 257–259 candidates 17–18, 44, 63 n. 23, 82, 91–92, 109, 120, 135, 176–177, 179, 186, 201–202, 229 capital 140–141, 147, 149–150, 167, 277 capitalist 4–5, 8, 21, 98, 201, 227 Central Committee of the Communist Party of China (CPC) 10, 12, 98, 119, 131, 147, 164, 182, 212 central government 33, 52, 57, 70, 72, 74, 99, 106, 140, 147, 154, 156–157, 168, 205, 248, 267, 273

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Central Military Commission 104 Central Military Committee 211 centralization 4–5, 16, 45, 52, 64, 98, 111, 205, 248, 269 centrally planned economy 6 n. 5, 50 n. 3, 89 n. 9, 97 n. 1, 123 n. 1, 124, 140 n. 2, 198 n. 4, 233 n. 2, 285 n. 5, 286, 290 charter on village autonomy 165, 171 checks and balances 31, 67, 72, 112, 117, 121, 189, 200, 211 chief justices 213, 256, 263 n. 12, 264 n. 13, 265, 272 Chinese People’s Political Consultative Conference (CPPCC) 127, 148 city-state 43, 128 civic character 79, 80, 84–85, 88, 94–95 civic culture 51, 64, 72, 100 civic organizations 12–13, 26, 28, 32, 62–65, 69 Civil Law 289–290 civil liberties 70 civil nonenterprise units 13 civil rights 52, 92, 223 n. 19, 235, 246–247, 249–251, 279 civil servants 85, 110 civil society organizations (CSOs) 13 civil society 12–13, 27 n. 30, 28, 29, 59, 62–64, 69, 72–73, 75, 143, 288 coercion 28, 47, 81 Cold War 67 collaborative democracy 56–58, 66, 71, 74 collaborative politics 70 collective leadership 104–105, 111 collective rights 218–219, 221, 280 collectively owned 181 collectivists 37 combinationist 208–209 Commission on Global Governance 27 Committee on Political and Legal Affairs 213 commodities 15, 61, 227, 277 common people 79, 91 commune system 10, 144–145 communes 6, 10, 140, 144–145, 147–149, 153 Community Party 84 n. 5, 99, 101–102, 107, 113, 124, 127, 212 Communist Party of China (CPC) 3–4, 8, 54, 97, 107, 127, 147, 164, 197, 212, 249, 285 competitive democracy 56–57

competitive elections 55, 109, 251 competitive primaries 176, 186, 193 concentration of power 51–52, 203 Confucius 208 Congress 132, 201 conservatives 13, 36, 42, 221, 238 n. 3 Constitution 4, 8, 12, 14, 21, 23, 36, 45, 48, 70, 74, 104, 116, 118–120, 130, 135–136, 138, 153, 164, 167, 172, 190–192, 198–200, 204–205, 207, 210–213, 216, 220–221, 224, 231–248, 250–251, 255–257, 259–265, 267–273, 286–288, 290 constitutional government 71, 236–237, 241, 243, 245, 259 constitutional law 37, 232, 234, 236, 240–243, 246, 258 constitutional litigation 240, 244 constitutional moral norms 243 constitutional oversight 136, 210–211, 246, 260 constitutional reform 231–234, 236, 238, 247–249, 253, 286–287 constitutional review 210, 240–242 constitutionalism 79, 197–202, 205–206, 215, 217, 220, 222, 224–229, 233, 235, 241–243, 288 consumption 40, 46, 277, 281 cooperative 42, 72, 75, 127, 134, 144 corruption 46, 54, 65, 97, 100, 117, 155, 174, 188, 201–203, 229, 236, 248, 255, 259 counter-revolutionary 212 county magistrates 153–154 courts 116, 117 n. 18, 130, 137–138, 210, 212–213, 240–242, 246, 250–251, 253 n. 1, 254–266, 268–273 criminal cases 221, 256, 270 Criminal Law 244 criminal prosecution 290 CSOs 13 Cultural Revolution 3, 6, 13, 24, 209, 218, 227, 237, 285 Currencies 248, 277 death penalty 221, 224 n. 19 decentralization 16, 45, 52, 64, 205, 248 democracy 3–9, 11, 13–14, 19–27, 29, 35–48, 50, 54–59, 66–68, 70–71, 73–75, 79, 90, 94, 97–103, 105–111, 114–116, 118–119, 121–123, 125–133, 135, 138, 146, 165, 174,

index 180, 183–185, 189, 194, 198 n. 6, 199–205, 207, 209, 211, 214–216, 220, 224–228, 235, 237, 247, 249, 285–287 democratic centralism 4, 7, 103–105, 107, 110–111, 114–116, 245, 264–265, 267 n. 15, 269, 271 democratic consciousness 84, 88–90 democratic consolidation 103 democratic elections 8, 55–56, 75, 79–80, 84–85, 89, 95, 115, 261 n. 10 democratic socialism 55, 58 democratic transition 50, 103 Deng Xiaoping 5–7, 14, 25, 50 n. 3, 89 n. 9, 97 n. 1, 98, 116, 119, 123 n. 1, 127, 140 n. 2, 198 n. 4, 211, 233 n. 2, 237, 285 n. 5, 286 Department of Civil Affairs 13 despotism 236, 255, 291 Developed countries 218 developing countries 49–50, 117, 218, 227 development vii, 4, 6–7, 9–11, 13–15, 17, 19, 21–23, 27, 29, 39–42, 44–45, 48–76, 80, 88, 94, 97–103, 105–110, 115–133, 137–138, 143–144, 146, 149, 152, 163, 165–166, 172, 174, 180, 183, 189, 193, 204–208, 214, 216–218, 220, 224–229, 232–234, 249, 276, 280–283, 286–288, 291 Dicey 241 dictators 38, 201–202 dictatorship 3–5, 25, 38, 97, 121, 199, 203–204, 257, 270 direct democracy 43–45, 47–48, 180, 189, 201 direct elections 14, 17–18, 30–31, 44, 53, 70, 79–81, 88, 93, 95, 156, 180 distribution 10, 24, 38, 50, 54, 61, 139–140, 142, 145–147, 152–153, 155, 181, 205, 241, 247–248, 263 n. 12, 287 diversification 9, 63, 66, 287 domestic affairs 219, 222, 278–279 drug 278 dynamic stability 24 Earth Summit 281–282 ecological footprint 281 economic competition 277 economic elite 66 economic liberalization 11, 67, 277 economic rights 7, 218, 220

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education 17, 39, 41, 47–48, 60, 63, 80–84, 89–91, 94, 101 n. 5, 102 n. 5, 139 n. 1, 149, 191, 209, 225, 238, 277–278, 280 effective village governance 139 egalitarianism 46, 228 elect representatives 218 election process 37, 81–83, 178 Elections 8, 14–15, 18, 21, 27, 29, 37, 41–42, 44, 46, 53, 55–58, 68, 70, 75, 79–95, 101 n. 4, 102, 108–110, 113 n. 14, 115–116, 118, 120 n. 23, 128, 132, 135, 156, 165–171, 173–181, 184, 186–188, 190, 193, 197, 200–206, 251, 261 n. 10, 263 n. 12 Electoral Attendance 87 electoral consciousness 84, 94 electoral democracy 55–58, 68, 70, 74 Electoral oversight 178–179 electoral participation 83–84, 89, 92–94 electoral process 82–86, 89–93, 101, 179 electoral reform/s 80, 88, 95 electoral system 74, 79, 88, 94–95, 178, 202 elite coalitions 111–112, 114 elite democracy 55, 57, 101, 107, 110 elitism 102 n. 5, 106, 228 emission 281 enterprises 9–10, 15–16, 46, 53, 61, 82, 85, 87, 144, 149, 181, 211, 226, 228, 276, 287 entrepreneurs 46, 65, 84 n. 5, 93, 101 n. 4 environment 19, 60, 67, 101–102, 121, 143, 276, 281–285, 287 equal rights 21, 47, 207, 220, 223 n. 19 equality 19, 24–25, 36, 38, 46–47, 52, 58, 61, 67–68, 193, 207, 226–228, 235, 279 n. 1, 288 ethnic minority 24, 37, 267 European Union 277 executive 8, 10–12, 21, 201, 203, 204 n. 8, 212, 239, 248, 254, 267 family planning 139 n. 1, 150, 152, 177, 181, 220 federalism 248 Fifteenth National Party Congress 14 finances 10, 75, 140, 145–147, 149–152, 167–168, 174, 181, 183, 190, 254, 266, 273

296 fines 150, 191 fiscal resources 141–142, 145, 147, 152 five charges 139, 141 Frederic Maitland 241–242 free competition 46, 277 free market 10, 21, 124–125, 231 freedom of speech 19, 37, 206, 218, 279 freedoms 19, 22, 25, 27, 35–37, 39–45, 47, 56, 64, 67–68, 79, 198, 206, 216–219, 221–222, 224, 226–228, 235–237, 246–247, 249–250, 260, 277, 279, 286–288 Friedrich Engels 282 Gang of Four 6 Gao Gang 113 general elections 37, 41, 80–81, 200–201 general secretary 100, 108 global cooperation 283 Global Environment Outlook 281–282 global environmental crisis 281–282 global factories 276 global law 285 globalization vii, 19, 59, 67–68, 275–276, 278–280, 283–286, 288, 290–291 GMD 3, 5 government oversight 130, 137, 201, 205–206 governmental models 243–244 grassroots democracy 14, 58, 74, 128–130, 132–133, 174, 180, 184–185 greenhouse gasses 281 Greenpeace 283 Grievance letters 65–66 Guangyuan 7 Guomindang 3, 197, 224 Han 143 highly centralized 61, 204, 226 Hitler 199 household contract system 145, 163 human rights 19, 37, 67, 198 n. 6, 199–200, 203, 207, 211, 215–228, 250–251, 254, 270, 275–276, 279–281, 285–288 Huntington 102, 125 illegal immigration 278 impeachment 210, 255

index imperialism 285 import quotas 277 income disparities 54, 280 incremental democracy 3, 11, 19, 22–24, 26–27 incremental development 109 independent judiciary 56, 59, 71, 257 indirect democracy 44, 47–48 individual rights 36, 44, 55–56, 61, 184, 219, 221, 226, 228, 249–250, 288 individualists 37 industrial democracy 36 Industrial Revolution 281 industrialization 59–60, 71 information technology 60 institutionalization 9, 51–52, 54, 72, 280 instrumentalist 5–6 intellectual elite 66 intellectual property rights 284 International Bill of Human Rights 250 International Covenant on Civil and Political Rights 223 n. 19, 251, 266 n. 3, 269 International Covenant on Economic, Social, and Cultural Rights 223 International Criminal Tribunal 280 International Institute for Sustainable Development 283 International Labor Organization 280 International Maritime Organization 280 international organizations 178, 279–280, 283–284 international relations 47, 278, 280 international terrorism 278 Internet 275 interrogation 221, 222 n. 18, 224 n. 19 intraparty democracy 57, 74–75, 97, 99, 105–108, 110–111, 114, 116, 118–119, 121–122, 127–128, 130, 133 Jeremy Bentham 37 Jiang Qing 212 Jiang Zemin 100, 107, 114, 118, 121, 211, 225 Jianying 7 Jin 143 John Austin 242

index John Dewey 41–42 John Stuart Mill 37, 39 judicial impartiality 254, 259, 263 judicial independence 211, 253–266, 269–273 judicial organs 245, 248, 250, 253 n. 1, 254, 256–257, 259, 262–264, 268–269, 273, 288 judicial oversight 17 judicial reforms 71–72, 253 judicial review 260, 265 judiciary 56, 59, 71, 74, 207, 211–213, 248, 255, 257–260, 262–264, 268, 273 jurisprudence 214, 253 Kang Youwei

79

labor 220, 224 n. 19, 251, 276 land confiscation 65 Law Enforcement 71, 117 n. 18, 259, 288 legalists 206 n. 10, 207–208, 243–244 Legislative Law of the People’s Republic of China 245 legislature 165, 214, 231, 246, 258, 263 n. 12, 265 n. 14, 287 Liang Qichao 79 liberal democrats 35, 42 liberal democracy 21, 36, 39, 45, 47, 55–56, 59, 71, 74 liberalists 21–22, 35, 37, 39, 41, 43, 45, 56, 67, 219 Lin Biao 113, 212 Liu Shaoqi 112 local autonomy 140, 154, 157, 205, 267 local people’s congresses 14, 120 n. 23, 137, 170, 245, 247, 263 n. 12, 264 n. 13, 265, 267 n. 15, 268, 272 Locke 203 mandatory retirement 110 Mao Zedong’s 3–12, 14, 19, 79, 110, 113, 125–126, 140, 197–198, 205 market economy 21, 26, 45, 52, 61–62, 67, 73, 76, 124–125, 155, 204–205, 220, 225–227, 250, 286–288, 291 market-oriented economic reforms 13, 52, 61–62, 64 marriage 94 n. 12, 220 Marxist 4, 20–22, 219

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mass media 60 Max Weber 126 mayor hotlines 17 media 18, 56, 59–60, 67, 71–72, 74, 137, 255, 263 n. 12, 279, 284 middle class 57, 63, 107 Migrant 86 Migrant workers 86–88, 174–175 migration 60, 86 military junta 202 Ministries 241, 245, 256 Ministry of Civil Affairs 165–166, 178–179, 182, 185 Ministry of Education 214 Ministry of Finance 147, 149 monopolies 67, 277 Montesquieu 203 multicandidate elections 57, 108–110, 114–115, 118, 120 n. 23, 202 multinational corporations 276 multinational investments 67 Multiparty System 9, 21, 110, 112, 115 national autonomous areas 205 National Bureau of Grievance Letters and Visits 65 National People’s Congress (NPC) 14, 104, 119, 127, 164, 203, 245, 256, 261 n. 10, 268 national sovereignty 204, 219, 222, 285, 289 naturalist model 243 Nazi 45 neoconservatives 67 neoleftists 45, 67 new authoritarianism 227 NGOs 280, 283 nongovernmental organizations (NGOs) 148, 280 nonpublic ownership 287 one issue–one discussion 141–142, 145 Organic Law of the People’s Republic of China on Village Committees (Revised Draft) 165 Organic Law of the People’s Republic of China on Village Committees (Provisional) 164 Organic Law of the Village Administration Committees of the People’s Republic of China 15 Orthodox Marxist 20–22, 219

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Pareto optimality 24 Pareto principle 69 party charter 107–108, 116 party committee system 105, 110, 121 party congress 156 party representatives 8, 102 n. 5, 108, 134 patriarchy 228 peacekeeping missions 278 peasants 5–6, 8–9, 15 Peng Zhen 224 people’s communes 6, 10, 140, 144, 147–149, 164 people’s congresses 9, 14, 81, 86, 116, 120 n. 23, 133, 135–137, 166–170, 245, 248, 256–258, 261 n. 10, 262–269, 272, 288 people’s courts 212, 221, 255–257, 259–266, 268–273 People’s Democratic Dictatorship 4, 97 People’s Procuratorates 104, 221, 245, 256, 265, 272–273 planned economy 6 n. 5, 10, 40, 50 n. 3, 61–62, 89 n. 9, 97 n. 1, 123 n. 1, 124, 140 n. 2, 144, 153, 198 n. 4, 204, 226, 233 n. 2, 250, 268 n. 16, 285 n. 5, 290 Plato 206 n. 10, 208 Politburo 107–109, 119 political culture 28, 51–53, 64, 72, 75–76 political democracy 40, 46–47, 58, 67, 73, 226–227 Political participation 25–26, 39, 51–53, 60–61, 64–66, 72–73, 84, 89, 93–94, 124–125, 129, 205–206, 248 political polarization 55 political rights 31, 38, 90, 206, 216–218, 220, 223, 226, 228, 251, 254 n. 3 political stability 9, 24–25, 51, 54, 63, 66, 70–71, 73, 98, 102–103, 125, 207 political unrest 66, 102 pollution 281 popular democracy 74, 101, 130–131 Popular sovereignty 20, 200, 236–237, 240, 246–247 poverty 17, 228, 278, 281, 285 preelection audit system 193 private property 40, 140, 251, 287 private sector 28, 124, 287

private voting booths 178, 193 production brigade 144, 163 proletariat 4–5, 228 proliferation of weapons of mass destruction 278 provisional organic law 165–166, 171–173, 179, 182–183, 185–191, 193 Provisional Regulations on the Financial Management of the Township 149 public ownership 124, 287 public projects 142, 145 public prosecutors 220 Public Security 17, 30, 117 n. 18, 150, 164, 213, 221, 222 n. 18, 256–257, 270 public services 18, 28, 61, 110, 142 purge 110, 114 Qin

143

radicalism 55, 76 redistribution of income 46 Reform and Opening-Up Policy 4, 6 n. 5, 11–12, 19, 50 n. 3, 51, 53, 66, 89 n. 9, 97, 110, 123, 140 n. 2, 145, 147, 153, 163, 193, 198, 233, 237, 252, 273, 285, 290 Reform constitutions 232–233 regional protectionism 257–258, 266 Regulations on Transparency of Government Information 16 republicanism 47, 79, 235 Revolutionary constitutions 232–233 right of suffrage 279 rule of law 3, 13–14, 25–26, 28–29, 35, 45–46, 53, 56, 59, 68, 70–71, 116, 118, 126, 184, 193–194, 198–200, 203, 206–211, 214–216, 220, 224–228, 231, 233, 242–243, 244–245, 249–250, 253–254, 263 n. 12, 268 n. 16, 269, 273, 275, 286, 288, 290 rural cadre training system 188 rural governance 139, 143, 146 rural tax reform 142, 150, 155 Samuel Huntington 102 Self-Governance 13–15, 26, 31, 89, 132, 144, 146, 163, 165–166, 189, 267 n. 15 separation of powers 118, 203–204, 267 n. 15, 271

index

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Shenzhen 14, 18, 101, 205, 227 Sichuan 14, 18, 93 n. 12, 141, 164, 167, 170, 178–180 Sidney Hook 39 sit-in protests 66 socialism 8, 55, 121, 219, 228, 286–287 socialist democracy 4, 21, 25–26, 54, 131, 237, 249, 286 socialist market economy 62, 286–287, 290 SOE 9–10, 16 South African apartheid 199, 279 special administrative regions 248, 267 n. 15 Summary of the Seminar on the Nationwide Construction of Village-Level Organizations 182 Sun Yat-sen 79, 197, 204 Supreme Court 210, 213, 244 n. 11, 260, 263 n. 12, 266 Supreme People’s Procuratorate 104, 245, 256 sustainable development 282–283

United Nations 201, 222, 278 Universal Declaration of Human Rights 223, 254 n. 3 universal moral values 235–236, 238 urbanization 59–60, 71 US Constitution 203

tariffs 276 tax distribution system 140 tax reforms 140, 142, 145–146, 148, 152, 155 taxes 61, 139, 141–142, 145–146, 154–155, 157 The Supreme People’s Court 104, 245, 256, 260 n. 9, 264 n. 13, 265, 268 Thirteenth National Party Congress 12 Trade unions 13, 31 trade 13, 31, 68, 126, 157–161, 250, 276–277, 283–284, 287 Transparency 16–17, 29–30, 166, 168, 174, 181–183, 188, 193, 255, 262

wealth distribution 54, 140 welfare expenditures 142 women’s federations 13, 31 World Bank 27 World Commission on Environment and Development 282 World Health Organization 280 World Trade Organization (WTO) 68, 126, 250, 276–277, 283–284, 288, 290

U.S.-Canada Trail Smelter agreement 283 UN 278, 280–284

village assembly 15, 180, 187, 191–192 village autonomy 163–166, 169–173, 179–181, 183–187, 189, 191, 193–194 village committees 15, 58, 70, 101 n. 4, 151, 163–167, 171–172, 176, 178, 182 village governance 15, 57, 89, 139, 142–143, 167–168, 181–186, 193 village representative assembly 165, 168–171, 179, 187, 189–190, 192 voting 30, 37, 46, 81–82, 85, 87 n. 7, 89–90, 94, 104, 174–175, 177–178, 193, 201

Yan Xishan 143 Ye Jianying 7 youth leagues 13, 93 Yu Keping viii, 3, 53, 69 Yuan dynasty 144 Zhang Youyu 198, 267 n. 15 Zhou Enlai 136

Issues in Contemporary Chinese Thought and Culture ISSN 1874-0588

Edited by

Arif Dirlik and Yu Keping

1. Yu Keping, Globalization and Changes in China’s Governance. 2008. ISBN 978 90 04 15682 1. 2. Dirlik, Arif and Yu Keping, Democracy and the Rule of Law in China. 2010. ISBN 978 90 04 18212 7.