Annex 5
Note on the Legal and Constitutional Status
of Minorities/Minority Areas in the PRC
The 1982 Constitution and the 1984 Law on Regional
National Autonomy of the People's Republic of China specifically
acknowledge the need for, and appear to be designed to facilitate,
protection of the rights of minorities. The documents state respectively
that regional autonomy "is" or "shall be"
practised in areas "where minority nationalities live in
concentrated communities". While this is clearly a requirement
and not an option, "autonomy" itself is not defined.
Article 4 of the PRC constitution states, inter
alia: "Regional autonomy is practised in areas where
people of minority nationalities live in concentrated communities;
in these areas organs of self-government are established to exercise
the power of autonomy. All national autonomous areas are integral
parts of the People's Republic of China". This provision
is applied to regions, prefectures and counties (see Article 2,
Law of the People's Republic of China on Regional National Autonomy,
effective 1 October 1984). By defining a region, prefecture or
county as "autonomous", the Chinese state is recognising
that specific constitutional/legal provisions apply to that area
and to people in that area. While there are certain differences
in the requirements placed on government bodies at different levels,
in terms of the exercise of autonomy, no distinction is made between
an Autonomous Region and an autonomous prefecture or county. Thus,
for example, Tibetans who live in autonomous prefectures or counties
in Qinghai are indeed constitutionally entitled to exercise their
"rights of autonomy".
Article 4 of the Constitution also states that
"the state protects the lawful rights and interests of the
minority nationalities". This provision is expanded on by
Chapter I of the Law on Regional National Autonomy. Inter alia,
governments in national autonomous areas "shall inherit and
carry forward the fine traditions of national cultures",
"shall guarantee the freedom of the nationalities in these
areas to use and develop their own spoken and written languages
and their freedom to preserve or reform their own folkways and
customs" and "shall guarantee the freedom of religious
belief to citizens of the various nationalities". (Articles
6, 10 and 11). These provisions appear to be mandatory, not optional.
The right to exercise autonomy is set out in
Article 8 of the Law on Regional National Autonomy: "State
organs at higher levels shall guarantee the exercise of the power
of autonomy by the organs of self-government of national autonomous
areas". However, Article 4 requires them to exercise the
power of autonomy "within the limits of their authority as
prescribed by the Constitution, by this Law and other laws, and
implement the laws and policies of the state in the light of existing
local conditions", Article 5 specifically requires them to
"uphold the unity of the country. . . ", and Article
6 specifically requires them to promote socialist modernisation,
"steadily increase labour productivity and economic results.
. . ". "Autonomy" is clearly tightly circumscribed
by other requirements of the state enshrined in law.
In summary, the Chinese state itself has explicitly
recognised the distinct legal status of minority nationality areas.
It has also explicitly recognised the need for protection of the
rights of minority nationalities. It is clear that those rights
apply equally to those minorities resident in autonomous prefectures
and counties within Chinese provinces and for example to Tibetans
in the Tibet Autonomous Region or Uighurs in the Xinjiang Uighur
Autonomous Region. The scope of other restrictions circumscribing
those rights, and the extent to which they may actually be exercised,
are separate issues.
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