Governance of China's Periphery: Balancing Local Autonomy and National Unity GOVERNANCE OF CHINA'S PERIPHERY: BALANCING LOCAL AUTONOMY AND NATIONAL UNITY PITMAN B. POTTER* I. INTRODUCTION .......................................................................... 294 II. CONCEPTUAL APPROACHES TO GOVERNANCE IN CHINA'S PERIPHERY: INSTITUTIONAL CAPACITY AND THE RULE OF LAW ......................................................... 295 1II. LEGAL PROVISIONS FOR GOVERNANCE IN THE PERIPHERY ................................................................................. 297 A. CONSTITUTION OF THE PRC ........................................................ 298 1. Regional Autonom y ............................................................. 298 2. M inority A ffairs ................................................................... 302 3. R eligion ............................................................................... 305 B. MINORITY AUTONOMY LAW ....................................................... 307 1. Institutional Purpose: Government Policies on M inorities and Religion ....................................................... 308 2. Institutional Location: Tensions Between Beijing and the Periphery ................................................................. 312 3. Institutional Orientation: Approaches to Local D evelopm ent ............................................................. 314 4. Institutional Cohesion: Minority Cadre Policy .................... 317 IV. IMPLICATIONS FOR CHINA'S OUTER PERIPHERY: HONG KONG AND TAIWAN ................................................... 320 V. CONCLUSION .............................................................................. 322 . Pitman B. Potter is Director of the Institute of Asian Research at the University of British Columbia ("UBC"). He is also Professor of Law and Director of Chinese Legal Studies at UBC's Faculty of Law. The research for this paper was made possible through a grant from the Social Sciences Research Council of Canada, for which the author is deeply grateful. The author would also like to thank Eleanor Gill, Michelle Merry, and Harry Chao Wang, students at UBC Law Faculty, and UBC's Institute of Asian Research for their invaluable research and editorial assistance on this paper. COL UMBIA JOURNAL OF ASIAN LAW I. INTRODUCTION China's governance of its peripheral areas has historically been a matter of national identity and remains so today. In keeping with its Marxist-Leninist heritage, the People's Republic of China ("PRC") has viewed the periphery in policy terms-initially as a challenge for socialist transformation and more recently as a locus of economic development. China depicts itself as a unitary state. The continued influence of Confucian patrimonial sovereignty along with concerns over national unity, wealth, and power has supported ideas and practices of governance that remain hierarchical and authoritative.' As China's participation in the world political economy has exposed liberal governance regimes, the dynamics of selective adaptation continue to adjust these to China's official norms of centralized governance.2 Yet Chinese and foreign observers frequently point to the extent of local resistance to central government rule. This is particularly true around the periphery, where tensions between central authority and local resistance are especially acute. While governance regimes for the periphery have generally been tailored to reflect the policy priorities of the Chinese Communist Party ("CCP"), the past ten years have seen increased public reliance on legal forms to formalize and lend legitimacy to policy preferences. In light of nearly thirty years' experience with other dimensions of China's legal system, 4 it is appropriate and important for us to consider the extent to which rule of law ideals are realized in China's approach to governance in the sensitive peripheral regions. Accordingly, this paper will examine the legal regime for China's governance in the Inner Periphery areas of Inner Mongolia, Xinjiang, and Tibet in light of the dynamics of institutional capacity and the implications for China's relations with the Outer Periphery areas of Macao, Hong Kong, and Taiwan. 1 Pitman B. Potter, Legal Reform in China - Institutions, Culture, and Selective Adaptation, 28 LAW & SOC. INQUIRY 465, 465-95 (2004). 2 Pitman B. Potter, Globalization and Economic Regulation in China: Selective Adaptation of Globalized Norms and Practices, 2 WASH. U. GLOBAL STUD. L. REV.119, 119-50 (2003). 3 See generally CHINESE SOCIETY: CHANGE, CONFLICT AND RESISTANCE (Elizabeth J. Perry & Mark Selden eds., 2d ed. 2003) [hereinafter CHINESE SOCIETY]. 4 See generally STANLEY B. LUBMAN, BIRD IN A CAGE: LEGAL REFORM IN CHINA AFTER MAO (1999). [19:1 GOVERNANCE OF CHINA 'S PERIPHERY II. CONCEPTUAL APPROACHES TO GOVERNANCE IN CHINA'S PERIPHERY: INSTITUTIONAL CAPACITY AND THE RULE OF LAW Analysis of China's political relations with the Inner Periphery has tended to focus on human rights dimensions of governance, 5 while historical analyses have provided general context for understanding their 6relations with China. However, in light of governance practices elsewhere as well as changing conditions in China, discussion of governance in China's peripheral areas has gradually engaged with discourses on federalism, which offer potentially useful insights into the dilemmas of central-local relations that inform national integration programs.7 Despite official discourses asserting that China is a unitary rather than a federal state, the true interplay of power and politics between the central and sub-national governments echoes practices of federalism.8 Although specific proposals about federalist governance were initially associated with the allegedly counter-revolutionary Yan Jiaqi, 9 broader scholarly discourses have increasingly accepted the application of federalist principles to China. l0 Although it rejects federalism, the Chinese government, for its part, has attempted to justify its policies and practices of governance in the periphery by reference to formal law, with particular attention to the PRC Constitution, the Law on Autonomy in Minority Nationality Areas, and ancillary laws and regulations. While this suggests a degree of parallelism with the expanded application of law to China's economic 5 See Andrew Fischer, Poverty by Design: The Economics of Discrimination in Tibet (Canada Tibet Committee, 2002), available at http://www.tibet.ca/en/publications/PovertybyDesign.pdf (last visited February 13, 2006); AMNESTY INTERNATIONAL, REPRESSION IN TIBET 1987-1992 (1992 ) [hereinafter REPRESSION IN TIBET]; AMNESTY INTERNATIONAL, SECRET VIOLENCE: HUMAN RIGHTS VIOLATIONS IN XINJIANG (1992) [hereinafter SECRET VIOLENCE]; HUMAN RIGHTS WATCH, CUTTING OFF THE SERPENT'S HEAD: TIGHTENING CONTROL IN TIBET 1994-1995 (1996); Uradyn E. Bulag, Inner Mongolia: The Dialectics of Colonization and Ethnicity Building, in GOVERNING CHINA'S MULTIETHNIC FRONTIERS 84 (Morris Rossabi ed., 2004) [hereinafter GOVERNING CHINA'S MULTIETHNIC FRONTIERS]. 6 See MELVIN GOLDSTEIN, THE SNOW LION AND THE DRAGON: CHINA, TIBET AND THE DALAI LAMA (1997); TSERING SHAKYA, THE DRAGON IN THE LAND OF SNOWS: A HISTORY OF MODERN TIBET SINCE 1947 (1999). 7 Glenn Drover & K.K. Leung, Nationalism and Trade Liberalization in Quebec and Taiwan, 74 PAC. AFF. 205 (2001). 8 Michael C. Davis, The Case for Chinese Federalism, J. DEMOCRACY, April 1999, at 124. 9 Yan Jiaqi, Federalism and the Future of Tibet, in TIBET THROUGH DISSIDENT CHINESE EYES 107-20 (Cao Changching & James D Seymour eds., 1998); see also Yan Jiaqi, China's National Minorities and Federalism, DISSENT, Summer 1996, at 139-44. 10 Huang Yasheng, Political Institutions and Fiscal Reforms in China, PROBLEMS OF POST- COMMUNISM, Vol. 48, January - February 2001, at 16, 16-26; Song X., Thinking Federal: The Relevance of Federalism to China, REGIONAL & FED. STUD., Autumn 2000, at 107-28. 2005] COLUMBIA JOURNAL OF ASIAN LAW reforms, the "legalization" of China's relations with the periphery is aimed more at building the legitimacy for central government policies than at reforming existing state-centric systems and lending predictability to resulting behavior. The PRC's legal regime for governance in the Inner Periphery continues to reflect central policy priorities conceived through organs of the Party and state leadership, which are then expressed and implemented through legal and political-legal institutions. This interplay between law and policy not only reveals long-standing features of China's legal and political culture, like the dynamic of patrimonial sovereignty, but also raises important questions about institutional capacity. I Institutional capacity refers to the ability of institutions to perform their assigned tasks. Institutional capacity has been examined from relational perspectives that focus on issues of responsibility between organizations and their constituencies, efficiency in performance and the use of resources, and accountability to varying sources of authority.1 2 Functional perspectives have also been applied to the question of institutional capacity in such areas as access to information, effectiveness and methods of communication, organizational symmetry, and ability to enforce rules and directives. 13 However useful these approaches may be in the abstract, actual institutional performance remains contingent on domestic political and socio-economic conditions.14 In China, the policy consensus over the role of legal institutions remains weak. Hence, understanding institutional capacity depends on analysis of more fundamental conditions of identity and perspective. 15 Accordingly, institutional capacity in China may usefully be examined by reference to issues of institutional purpose, location, orientation, and cohesion. "Institutional Purpose" concerns the goals of institutional behavior, and the way these reflect consensus and conflict among communities in which institutions operate. Thus, the capacity of China's governance institutions to implement policies on national integration in relations with the Inner and Outer Peripheral areas depends 1 Potter, supra note 1. 12 H.V. Savitch, Global Challenge and Institutional Capacity: Or How We Can Refit Local Administration for the Next Century, 30 ADMIN. & SOC'Y 248, 248-73 (1998). 13 William Blomquist & Elinor Ostrom, Institutional Capacity and the Resolution of the Commons Dilemma, in POLYCENTRIC GOVERNANCE AND DEVELOPMENT: READINGS FROM THE WORKSHOP IN POLITICAL THEORY AND POLICY ANALYSIS, at 60-73 (Michael Dean McGinnis ed., 1999) [hereinafter POLYCENTRIC GOVERNANCE]. 14 See Lisa L. Martin & Beth A. Simmons, Theories and Empirical Studies of International Institutions, 52 INT'L ORG. 729, 729-57 (1998); see also Patsy Healey, Building Institutional Capacity Through Collaborative Approaches to Urban Planning, 30 ENV'T & PLAN. 1531 (1998). 15 David Zweig, The "Externalities of Development": Can New Political Institutions Manage Rural Conflict?, in CHINESE SOCIETY, supra note 3, at 113-36. [19:1 GOVERNANCE OF CHINA 'S PERIPHERY on the extent of clarity and consensus regarding policy objectives. Institutional capacity also depends on issues of "Institutional Location," particularly the question of balancing central authority with decentralization of social and economic development initiatives. 16 Practical divisions of power and authority between local and central government departments in China permit a degree of policy interplay between the central and sub-national governments that reveals marked differences of perspective and practice. 17 These are particularly pronounced in the sensitive minority areas of the Inner Periphery. Institutional capacity also depends on "Institutional Orientation"- namely, the priorities and habitual practices that inform institutional performance. This is particularly sensitive in the Inner Periphery, where local social norms and economic practices differ significantly from those of the dominant Han culture associated with the central government. Contested perspectives on development are particularly important examples of institutional orientation in China's governance of the Inner Periphery. Finally, institutional capacity depends on issues of "Institutional Cohesion," involving the willingness of individuals within institutions to comply with edicts from organizational and extra- organizational leaders and enforce institutional goals. In the context of governance in the periphery, institutional cohesion particularly involves the question of cadre recruitment to governance institutions. III. LEGAL PROVISIONS FOR GOVERNANCE IN THE PERIPHERY The factors of institutional capacity come into sharp relief in the context of China's governance in the Inner Periphery, particularly with reference to law and policy issues of regional autonomy, minority affairs, and regulation of religion.' 8 The legal framework for governance on these issues derives primarily from the PRC Constitution, the Law on Autonomy in Minority Nationality Areas ("Minority Autonomy Law" or "MAL"), and the regulatory regime for control of religion (including recently enacted national regulations on religion). Besides China's 16 James S. Wunsch, Institutional Analysis and Decentralization: Developing an Analytical Model for Effective Third World Administrative Reform, in POLYCENTRIC GOVERNANCE, supra note 13, at 243-68. 17 See Sean M. Dougherty & Robert H. McGuckin, Federalism and the Impetus for Reform in China, CHINA LAW & PRAC., May 2002, at 30; Sean M. Dougherty et al., How Federalism-Not Just Privatization-Is Driving China's Economy, ZegF-i [U.S.-CHINA BUS. REV], Vol. 2, No. 1, 2002, at 115. 18 THEODORE C. SORENSEN & DAVID L. PHILLIPS, LEGAL STANDARDS AND AUTONOMY OPTIONS FOR MINORITIES IN CHINA: THE TIBETAN CASE (2004). 2005] COLUMBIA JOURNAL OF ASIAN LA W formal Constitutional and legislative provisions for governance in the Inner Periphery, much attention has also been paid to problematic enforcement of international human rights standards espousing rule of law ideals, '9 disparities of economic and social wellbeing 20 and troubling practices in the regulation of religion affairs.21 While such problems may be taken as evidence of the unwillingness of the PRC government to enforce its own laws, China's behavior can also be understood in light of institutional capacity. Institutional purposes centered on implementation of Party policy on autonomy, minority nationalities, and religion; institutional location questions involving disparities of viewpoint and language between Beijing and the periphery; issues of institutional orientation revealing tensions over approaches to local development; and factors of institutional cohesion affecting cadre selection and administration all have a significant impact on the performance of the legal and regulatory system for governing China's periphery. Institutional capacity analysis suggests an approach to understanding what sorts of governance behavior China's legal framework is likely to generate. A. Constitution of the PRC The Constitution of the PRC provides general legal principles from which all other legislation is to proceed. Thus, provisions on local autonomy and minority governance set forth in the Law on Autonomy of Minority Nationality Areas (the "MAL") are based on underlying constitutional provisions. Related to this are issues of regulation of religion, to which the MAL and related minority governance laws and policies frequently refer. 1. Regional Autonomy The Constitution provides overall guidance on issues of local autonomy. The Constitution addresses governance autonomy in nationality areas separately from local people's congresses, which are augmented by a range of formal legislations.22 Governance in the Inner 19 REPRESSION IN TIBET, supra note 5; SECRET VIOLENCE, supra note 5; HUMAN RIGHTS WATCH, supra note 5. 20 See generally COLIN MACKERRAS, CHINA'S ETHNIC MINORITIES AND GLOBALISATION 56-76 (2003). 21 Pitman B. Potter, Belief in Control: Regulation of Religion in China, 174 THE CHINA Q. 317 (2003). 22 5LM [CONST.], art. 5 (1982) (P.R.C.); KEVIN J. O'BRIEN, REFORM WITHOUT LIBERALIZATION: THE NATIONAL PEOPLE'S CONGRESS AND THE POLITICS OF INSTITUTIONAL CHANGE (1990); [19:1 GOVERNANCE OF CHINA 'S PERIPHERY Periphery areas of Inner Mongolia, Xinjiang, and Tibet is subject to Section 6 on governance in autonomous regions (as well as prefectures and counties). Viewed in light of CCP policy dictates and broader official discourses on governance autonomy in nationality areas, these provisions reveal particularly interesting features in the context of institutional capacity. Article 113 provides for appropriate representation at the local people's congresses for nationalities inhabiting a minority autonomous area region, prefecture, or county other than the nationality in whose name the area is designated. While ostensibly meant to ensure that local minorities such as Kazaks in Xinjiang or Tibetans in Mongolia are represented in local people's congresses, this provision also ensures representation of Han Chinese residing in minority nationality areas. Such provisions support local perceptions that China aims to divide local non-Han minorities by promoting political competition that weakens factors of commonality in relation to the Han people.23 These issues of institutional purpose and location affect the exercise of institutional capacity. Articles 113 and 114 require that the Chair and at least one Vice- Chair of the autonomous area people's congress standing committee be a member of the local nationality, and that the administrative head of the area also be a local nationality. While these provisions allow local minorities to influence local governance, no parallel provisions govern Party organs. The pervasive influence of the CCP is well known, such that local minority administrative leaders are often perceived as impotent followers of the Han-dominated CCP. 24 Indeed, authoritative government directives confirm that the Party considers itself the final arbiter of minority nationality interests.25 In minority nationality areas, this tends to weaken the legitimacy and influence of the local minority administrative heads. Nonetheless, interviews-including those conducted by the author-reveal that officials at operational levels in the bureaucracy are trying to ensure fairness and justice for local minorities. MURRAY SCOT TANNER, THE POLITICS OF LAW-MAKING IN POST-MAO CHINA: INSTITUTIONS, PROCESSES, AND DEMOCRATIC PROSPECTS (1998); #A, I'. :LW [ZHUO YUE, STUDY OF THE SUPERVISORY SYSTEM OF LOCAL PEOPLE'S CONGRESSES] (2002). 23 Dru C. Gladney, The Chinese Program of Development and Control, 1978-2001, in XINJIANG: CHINA'S MUSLIM BORDERLAND 101 (S. Frederick Starr ed., 2004) [hereinafter CHINA'S MUSLIM BORDERLAND]. 24 Justin Rudelson & William Jankowiak, Acculturation and Resistance: Xinjiang Identities in Flux, in CHINA'S MUSLIM BORDERLAND, supra note 23, at 299-319. 25 l [BASIC APPROACHES AND POLICIES OF THE CHINESE COMMUNIST PARTY ON NATIONALITIES ISSUES] 155 ff- [State Nationalities Affairs Commission ed.], 2002). 2005] COLUMBIA JOURNAL OF ASIAN LA W These questions of national identity in local people's congress representation reveal conflicts over institutional purpose, location, orientation, and coherence. Article 115 affirms the functions and powers of local governance organs, but qualifies these by limiting their authority within the constraints of the Constitution, the MAL, and other laws. These limitations, particularly in light of the unitary state ideal, effectively prohibit local governments from directly opposing policy directives from higher levels, although local governance departments are permitted to adapt state laws and policies to local conditions. Proponents of greater democratic and legal development in China concede that these must extend beyond the limits of the national minority autonomy system.26 The tension between a formal autonomy that is subject to higher-level direction and local adaptability in the course of enforcing state laws and policies means that the extent of local autonomy in practice is unclear. This, in turn, potentially means that local officials hoping to adapt state laws and policies to local conditions will continue to be restrained by the content of the very laws and policies they are attempting to interpret. Along with dimensions of purpose, location, and orientation, these uncertainties represent problems of institutional capacity. Article 116 reveals similar tensions with respect to the authority of local people's congresses to enact regulations in light of local characteristics. Possessing such authority, people's congresses in autonomous regions must still submit any regulations to the NPC Standing Committee for approval. Yet autonomous region people's congresses may approve regulations enacted at lower autonomous prefecture and county levels. This creates incentives for autonomous region governments to avoid NPC approval by coordinating regulatory decisions at lower levels, which can also be attributed to building local political relationships.27 This tends to undermine local initiative and flexibility at the sub-autonomous region level, as local governments are pressured to comply with autonomous region-level initiatives. Once again, issues of purpose and location affect institutional capacity. Articles 117 through 119 extend significant authority to local autonomous area governments on subjects of financial management, local economic development, education, science, culture, public health and 26 % , K.)W If.hEA t t C 0K ,ASJ 31.t [ZENG XIANYI, ESTABLISHMENT OF DEMOCRACY AND LEGAL SYSTEMS IN THE COURSE OF MODERNIZATION OF MINORITY AREAS] 43-47 (2002). 27 kilj'jt & 5rI1L, r 91L 'R i JFf [LIU JIANLAN & WANG ZONGLI, STUDY OF BUILDING POLITICAL POWER AT THE VILLAGE AND TOWNSHIP LEVEL IN MINORITY AREAS OF NORTHWEST CHINA] 299 (1998). [19:1 GOVERNANCE OF CHINA 'S PERIPHERY physical culture. Yet these remain subject to policy interpretation in light of central Party and government priorities. Financial autonomy is generally limited to autonomy in the management of local financial resources, but centrally directed policies and plans must still be followed.28 Local development plans must also operate under the guidance of state plans. Thus, state initiatives like the Western Development Strategy ( xibu dakai fa) remain outside the purview of local autonomy, while local development efforts must continually defer to priorities issued from the central government. Constitutional grants of local autonomy over the administration of education, science and culture are qualified by the requirement of protecting and putting in order (Wf, zhengli) cultural heritage and promoting cultural development. These normative standards are then interpreted to mean conformity with the Han educational, scientific, and cultural criteria, even as these are portrayed in non-ethnic terms of socialism, modernization, development and "opening up.", 29 These dimensions of orientation and purpose reveal potential problems for institutional capacity as well. The potential for state intrusion on security matters is underscored in Article 120, which allows local governments to organize local public security forces to respond to concrete local needs, in accordance with the state military system and subject to State Council approval. This allows for state direction of local security activities-particularly in peripheral areas where border security and perceived threats of separatism and terrorism have been used to justify expanded national security initiatives. 30 Once again, the tension between local initiatives and central priorities and approvals reveals institutional capacity issues of purpose and location. Article 121 addresses the key governance issue of local language usage in governance activities. Rather than directing local government departments to use local languages, the formalistic approach on language usage is to state that local languages are already in use. Yet Chinese language usage continues to dominate social and political life in minority areas. 3 1 While a 2000 law on simultaneous language usage was heralded as an example of the government's commitment to protecting local 28 R 4 M" i- i [GENERAL SURVEY ON THE LAW ON AUTONOMY IN MINORITY AREAS] 213-16 ( [Song Caifa ed.], 2003) [hereinafter GENERAL SURVEY ON THE MAL]. 29 RftK%, +[NKA9 -k4* [WU SHIMIN ET AL., READER ON CHINA'S NATIONALITIES POLICY] 65-167 (1998). 30 , . - t7J [MA DAZHENG, NATIONAL INTEREST IS PARAMOUNT] (2003). 31 Gardner Bovington, Heteronomy and Its Discontents: "Minzu Regional Autonomy " in Xinjiang, in GOVERNING CHINA'S MULTIETHNIC FRONTIERS, supra note 5, at 133-37. 2005] COLUMBIA JOURNAL OF ASIAN LA W minority languages, its very enactment and subsequent challenges to its full implementation suggest that minority language usage remains marginalized.32 Indeed, direct interaction between government and administrative officials and local residents often involves teams of Han and local minority officials, with the Han cadre making decisions and the minority cadre simply translating, insulating the Han official from direct contact with local people. Poor relations between minority and Han cadres are described as increasingly serious; worse, even, than during the 1950s and 1960s. 33 In light of the extent of Han domination during the first two decades of PRC rule, 34 this is a gloomy assessment indeed. Institutional orientation is particularly evident in language matters that tend to isolate and protect Han officials from local society. This, in turn, fosters resentment and a sense of colonization, revealing the ways that institutional location and orientation affect institutional capacity. Article 122 depicts the central government as providing financial, material, and technical assistance to autonomous areas and assisting with training local minority cadres. However, this tends to undermine local autonomy, as the assistance and training are expressly intended to strengthen central control and ensure local compliance with central level policy priorities, many of which are not supported locally. 35 Institutional capacity problems arise once again around purpose, location, and orientation. 2. Minority Affairs Article 4 of the PRC Constitution articulates norms of equality, unity, autonomy, and development in minority affairs. Existing work on China's minority policies raises important questions as to whether these empower or marginalize non-Han cultural groups. 36 Each of the 32 _b,_, L [Schools Are the Basic Front for Fully Implementing the Law on Simultaneous Language Usage by the State], in '+' JK j-, Yl - i [STUDY READER ON THE SIMULTANEOUS LANGUAGE LAW OF THE PRC] 34-36 ( I[A) . #4 /A Cft Z [National People's Congress Committee on Education, Science, Culture, and Health and Ministry of Education ed.], 2001). 33 4) ; ,. 4 ,_VjVI [Sun Yi et al., Issues in Training Minority Cadres and Minority Representatives in Xinjiang], in 1 I [COLLECTION OF ESSAYS ON THE STUDY OF XINJIANG] 309-10 (A*;!,- & - 'N [Tiemuer & Mao Gongning eds.], 2003) [hereinafter COLLECTION OF ESSAYS ON THE STUDY OF XINJIANG]. 34 James A. Millward & Nabijan Tursun, Political History and Strategies of Control, 1884-1978, in CHINA'S MUSLIM BORDERLAND, supra note 23, at 63-98. 35 WU, supra note 29, at 47-49, 181-82. 36 Barry Sautman, Preferential Policies for Ethnic Minorities in China: The Case of Xinjiang, in NATIONALISM & ETHNIC POL., Spring/Summer 1998, at 88-118; MACKERRAS, supra note 20, at 26; David Wang, Han Migration and Social Changes in Xinjiang, ISSUES & STUD., Vol. 34, No. 7, [19:1 GOVERNANCE OF CHINA 'S PERIPHERY provisions in Article 4 is laden with meaning, based on China's policy record and current policy documents. First, Article 4 states: "All nationalities of the People's Republic of China are equal. 37 This underscores the notion of equality between Han and non-Han minorities. The provision suggests a formalistic approach to equality, connoting equality of status rather than equality of actual conditions.38 The formal legal equality that places minority nationalities in the same position as the Han majority can serve as grounds for challenging policy preferences accorded minority groups.39 While this provision apparently stands as a prohibition against discrimination against minority groups and individuals, its reliance on formal equality norms also raises the possibility of entrenching substantive socio-economic inequalities through removal of regulatory accommodation for special needs of marginalized groups.40 Further, according to Article 4, "[t]he state protects the lawful rights and interests of minority nationalities and upholds and develops the relationship of equality, unity and mutual assistance among all of China's nationalities., 41 Rights and interests must be lawful in order to be protected, meaning that these may not contravene provisions for Party supremacy, the socialist system, state interests, and other privileged domains whose protection is the prerequisite to "lawfulness." As with other areas of constitutional rights, this imposes significant limits on rights enforcement. Moreover, the state is accorded the dominant if not the sole role in protecting lawful rights and interests. The state's monopoly on stewardship over matters of equality, unity, and mutual assistance has the potential to deprive minority groups of authority to determine the substantive or procedural dimensions of these ideals. Official statements on minority policy direct Party and state leadership over these issues to focus on national as opposed to local priorities.42 Moreover, "[d]iscrimination against and oppression of any nationality are prohibited; any acts that undermine the unity of 1998, at 33-61; Solomon M. Karmel, Ethnic Tension and the Struggle for Order: China's Policies in Tibet, 68 PAC. AFF. 485 (1995/1996). 17 E [CONST.] art. 4 (1982) (P.R.C). 38 Barry Sautman, Ethnic Law and Minority Rights in China: Progress and Constraints, 21 LAW & POL'Y 283, 284-86, 290-95 (1999). '9 J\& , +M-n.itXM$J ,Afh [SUN YU ET AL., STUDY OF THE LEGAL SYSTEM ENVIRONMENT IN CHINA'S WESTERN REGIONS] (2001). 40 URADYN E. BULAG, THE MONGOLS AT CHINA'S EDGE: HISTORY AND THE POLITICS OF NATIONAL UNITY 123-24 (2002). 41 ? [CONST.] art. 4 (1982) (P.R.C.). 42 _ t j t i L1I, [STATE NATIONALITIES AFFAIRS COMMISSION, BASIC APPROACHES AND POLICIES OF THE CHINESE COMMUNIST PARTY ON NATIONALITIES ISSUES] (2002). 2005] COLUMBIA JOURNAL OF ASIAN LAW nationalities or instigate their secession are prohibited.'A3 The term "any nationality" (4+1PI , renhe minzu) includes Han within the protected category, thus undermining provisions restricting Han Chinese activities. 44 This has resulted in increased Han dominance of economic and political life in minority areas. 4 The proscription against undermining the unity of nationalities works to prohibit expressions of anti-Han sentiment in minority areas-and has been applied against peaceful demonstrations, literary and media reporting, and policy debates that are seen to challenge Party policy. 46 The prohibition again secession is clear on its face, but it also clearly linked to the broader theme of unity of nationalities. Fourth, "[t]he state helps the areas inhabited by minority nationalities speed up their economic and cultural development in accordance with the peculiarities and needs of the different minority nationalities.' 47 State aid in development invites imposition of particular models of development that tend to emphasize urbanization, capital-intensive infrastructure development, and socialist market forces.48 While these approaches are understood by government policy specialists to contradict local practices and aspirations, the solution tends to lie in intensified education and cultural assistance that will make such approaches to development more palatable locally.49 Fifth, "[r]egional autonomy is practiced in areas where people of minority nationalities live in compact communities ( juju); in these areas organs of self-government are established for the exercise of the right of autonomy. All the national autonomous areas are inalienable parts of the People's Republic of China.",50 Autonomy in national minority areas is limited to administration over purely local issues, is subject to central state and Party leadership, and does not include autonomy to depart from legal and regulatory provisions of higher levels.51 Moreover, the phraseology defining minority areas, particularly 43 JE, [CONST.] art. 4 (1982) (P.R.C.). WU, supra note 29, at 6-8. 45 CHRISTIAN TYLER, WILD WEST CHINA: THE TAMING OF XINJIANG 211-21 (2004). 46 9 0 R-)W _6 .- ., N 0 * Iff / N i E K f, 4 * * a 2003 [XINJIANG MINORITIES COMMISSION , BASIC SITUATION OF RELATIONS AMONG NATIONALITIES IN XINJIANG UIGHUR AUTONOMOUS REGION 2003], in COLLECTION OF ESSAYS ON THE STUDY OF XINJIANG, supra note 33, at 183-93; MA, supra note 30, at 103-05. 47 3tg [CONST.] art. 4 (1982) (P.R.C.). 48 Calla Weimer, The Economy of Xinjiang, in CHINA'S MUSLIM BORDERLAND, supra note 23, at 163-89. 41 pgf&L ; K)W)Z4- [WESTERN CHINA DEVELOPMENT AND MULTI-ETHNIC CULTURES] 12- 17 (4: m [Ma Zifui ed.], 2003) [hereinafter WESTERN CHINA DEVELOPMENT]. 50 ?CM [CONST.] art. 4 (1982) (P.R.C.). 51 GENERAL SURVEY ON THE MAL, supra note 28, at 51-57. [19:1 GO VERNANCE OF CHINA 'S PERIPHERY the use of the term "compact communities," indicates areas occupied nearly exclusively by minorities. Migration programs increasing Han populations in areas of Inner Mongolia, Xinjiang, and Tibet present significant challenges to minority-oriented governance in these areas. The reference to minority areas being inalienable from China underscores the government's continuing concern with separatism. 52 Finally, "[t]he people of all nationalities have the freedom to use and develop their own spoken and written languages, and to preserve or reform their own ways and cultures. 53 Particularly in light of the increasing size of the Han populations in minority areas, the reference to "all nationalities" in this provision works to impede use of local minority languages at government and educational institutions in minority areas by permitting use of Han Chinese.54 Also, the suggestion that nationalities may choose to reform their own ways has been interpreted as justification for government-sponsored education and cultural "reform" programs aimed at improving the quality (A,- suzhi) of minority populations and the potential for their assimilation into the dominant Han culture .55 Thus, the Constitutional provisions on nationality affairs provide significant justification for state-centric governance and for gradual diminution of local ethnic identity. When viewed in light of related discourses on the conditionality of constitutional rights and the national unity imperatives of minority policy, the provisions of the PRC Constitution serve to entrench policy ideals and approaches that have the potential to marginalize minority nationalities. These are further entrenched in the Minority Autonomy Law discussed below. 3. Religion Constitutional provisions on religion distinguish between freedom of belief and controls on behavior.56 Article 36 provides that citizens enjoy freedom of religious belief, and protects "normal religious activities." 57 Yet this protection does not extend to behavior that disrupts public order, impairs the health of citizens, or interferes with the educational system of the state. In explaining the meaning of constitutional provisions on religious freedom, Peng Zhen noted that, from a political perspective, the common elements of patriotism and 52 MA, supra note 30, at 177-90. "3 M [CONST.] art. 4 (1982) (P.R.C.). 54 Wu, supra note 29, at 263-66; STATE NATIONALITIES AFFAIRS COMMISSION, supra note 42. 55 STATE NATIONALITIES AFFAIRS COMMISSION, supra note 42, at 196-98. 56 Potter, supra note 21. 51 EM [CONST.] art. 36 (1982) (P.R.C.). 2005] COLUMBIA JOURNAL OF ASIAN LAW adherence to socialism bind those who believe in religion and those who do not.58 This underscores the imperative of submission to Party/state control as a condition for enjoyment of religious freedom. Protection of freedom of religious belief is qualified as well by Article 33 of the PRC Constitution, which conditions the exercise of citizens' rights on performance of their duties. As Peng Zhen explained, these included upholding the Four Basic Principles, 60 which impose a duty to uphold the socialist road, the dictatorship of the proletariat, leadership of the Party, and Marxist/Leninist/Mao Zedong Thought. Thus, the freedom granted religious belief remains conditional not only on compliance with law and regulation, but more fundamentally on submission to the policies and edicts of the Party/state. The State Council's 1997 White Paper on Freedom of Religious Belief in China reiterated the point that "religion should be adapted to the society where it is prevalent" and that religions must "conduct their activities within the sphere prescribed by law and adapt to social and cultural progress." 61 Pursuant to these principles, the government remained committed to punishing those religions and religious believers who "are a serious danger to the normal life and productive activities of the people" or who "severely endanger the society and the public interest." 62 The coercive themes associated with administration of religion were reiterated at the United Front Work Department's national work conference in late December 1999 by Director Wang Zhaoguo: "[W]e must comprehensively and correctly implement the Party's religious policy, strengthen administration of religious affairs according to law, and actively guide religions to adapt to socialist society." 63 These basic Constitutional provisions are echoed in a wide array of central and local regulations that control religious activities, practitioners, " 0- A, A -T* .K., t[V-I 3 A HJ [Peng Zhen, Explanation of the Draft Revisions to the Constitution of the PRC], in A, f Ii- e [PENG ZHEN, ON BUILDING SOCIALIST DEMOCRACY AND LEGAL SYSTEM DURING THE NEW PERIOD] 100-15 (1989). " ?PM [CONST.] art. 33 (1982) (P.R.C.). 60 - jLtfl