Aspects of Federalism in China: A Legal Perspective - A Unitary System with Federal Characteristics?

Abstract

Based on an analytical study of federalism, this volume explores modem China's federal history; examines federal features and difficulties inherent in China's current central-local relationship practice; looks at the effect of China's traditional culture and geography on its governance; investigates the current status of the Taiwan issue; and proposes a model for redesigning the Chinese unitary system to incorporate federal characteristics.

Chapter 1 inquires into federalism's essential theoretical characteristics: legally shared sovereignty, a constitutional specific division of powers, and a court arbiter role. Legally shared sovereignty is the requisite essence of a federal political system. Legally shared sovereignty-based federalism mandates a specific division of powers via a constitution, with certain guarantee mechanisms to ensure a proper relationship between the national government and constituents. A constitutionally established mechanism to arbitrate disputes between the federal and constituent governments, usually taking the form of an independent court system, is also essential.

Federalism did not take root in modem China. Yet, China is not historically unfamiliar with it, as detailed in Chapter II. Sun Yat-sen and other intellectuals advocated its adoption. Moreover, China practiced federalism in the 1920s through the United Provincial Autonomy movement. Further, the Chinese Communist Party (CCP) itself advocated a federal China and retained federalism as a choice of government structure until shortly before the establishment of the People's Republic of China in 1949.

Chapter III investigates China's current central-local relations and concentrates on the Hong Kong Basic Law enacted under the "One Country, Two Systems" policy, developed as a means to solve China's unification problems. Under the Basic Law, Hong Kong enjoys substantial powers guaranteed by several special mechanisms. It has power to issue its own final adjudications, and a high degree of autonomous executive and legislative authority. Hong Kong plays an important role in the Basic Law's interpretation and amendment process, preventing the central government from unilaterally changing the law. In Hong Kong, the courts also tried to act as an arbiter between the central government and the Hong Kong Special Administrative Region. These developments and practices demonstrate the Basic Law's federal characteristics.

Regional ethnic autonomy is another important aspect of China's central-local relations. Chapter IV discusses the law in this area, noting numerous autonomous powers granted to minority regions that other provinces do not enjoy. The Regional Ethnic Autonomy Law covers all aspects of minority autonomy, including politics, economy, culture, and society. It also defines the relationship between the central government and such regions. While legally broad, the regional powers provided under the law are not all practically enforceable. In Tibet and Xinjiang, improper exercise of autonomous powers has occasionally led to ethnic tensions.

Chapter V illustrates some dilemmas and difficulties in current Chinese central-local relations. The constitutional design and political practice are inconsistent. Social, economic and judicial localism is a serious concern. Federal tools for exercising national control could be invaluable in tackling this issue. China's unitary system has also contributed to geographically imbalanced development. Beijing's poverty belt and equally serious overpopulation crisis both emerged under China's unitary system. The present instability of central-local relations demands innovation in China's state structure.

China's traditional culture and geography also influence its state structure. Chapter VI demonstrates that China has not yet developed the rule of law partly because its traditional culture is generally incompatible with this Western idea. The Self­Strengthening Movement in the late Qing Dynasty offers a vivid picture of traditional values' strong resistance to modernization. Taiwan's transition to the rule of law, on the other hand, shows how significant westernization is in achieving the rule of law against the backdrop of East Asian tradition. Federalism is associated with the rule of law and accountability, and without remarkable and substantial development in the rule of law, China's unitary nature shall persist. However, introducing certain federal characteristics to solve specific unitary system problems could be the most practical and reasonable choice, especially given China's large size and diverse.

Chapter VII focuses on the Taiwan issue. Any resolution will greatly impact China's future central-local relations. Extreme cross-strait imbalances make pure federalism undesirable in crafting post-unification relations between Taiwan and the central government. Introduction of certain federal mechanisms, incorporated into a Taiwan Basic Law, nonetheless will help cement the legal guarantees of Taiwan's high degree of autonomy.

The Conclusion defines a unitary system with federal characteristics and proposes principles for a China Central-Local Relations Act to enact this hybrid system.

Subject Area

Law

Degree Date

2011

Document Type

Dissertation

Degree Name

S.J.D.

Department

Dedman School of Law

Advisor

John B. Attanasio

Number of Pages

354

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