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American Diplomacy
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December 2002

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The first word of the author’s commentary is not a typographical error. He discusses the similarities and differences between the U. S. and Taiwanese and Hong Kong voting systems, China’s decade and a half of experience with the ballot, its “fear of chaos,” and the prospects for democratization in China.—Ed.

SINICAL VOTERS? ELECTIONS IN GREATER CHINA . . . AND THE UNITED STATES

When Americans went to the polls on November 5, observers included a remarkable delegation of election scholars, elected officials, and election officials from the People's Republic of China (PRC), Taiwan, and the Hong Kong Special Administrative Region (HKSAR). These representatives of the three disparate polities within Greater China came to the United States under the auspices of the Carter Center and the National Committee for U. S. -China Relations to see how America votes. The Women's Campaign International served as host for the group's visit to Philadelphia, where the delegates observed the elections. Their perspectives and concerns included some that Americans would find alien and, more surprisingly, some we would find familiar.

THE ELECTIONS BOOM IN GREATER CHINA
The Greater China observers came from a region that has experienced a boom in elections (including democratizing elections) during the last decade and a half. In the PRC, elections have emerged along two distinct tracks. During the reform era that began after Mao's death, the formal procedures for electing legislatures from the county through the national levels have been restored and, in some respects, invigorated. The National People's Congress and other higher-tier, subnational legislative bodies are indirectly elected by the members of lower-level People's congresses. In practice, of course, the Chinese Communist Party (CCP) elite manages such elections closely. Even in the PRC, there have been small signs of greater electoral openness. For a brief moment in 1980, the elections to the county-level People's congresses were genuinely competitive in a few, primarily urban and university-based districts, with candidates critical of the CCP running and garnering the largest share of the votes. The most outspoken contestants were never allowed to assume their seats, and the experiment with open elections for these congresses has not been repeated. But elections with more candidates (albeit all pre-vetted by higher levels in the CCP) have become normal. Officials quote Deng Xiaoping's dictum that China will establish democracy (including elections) eventually. The more intriguing development in PRC elections has been in the countryside. Here, too, the roots lie early in the post-Mao years, with the decision of residents of a few villages in a remote province to elect their own leaders in 1980-81. The idea occasioned some controversy, and direct elections for local villagers committees only became a national requirement in 1988. The present structure of triennial elections emerged only gradually, through a series of laws and amendments over the next ten years and the adoption of still-evolving implementing legislation at the provincial level.

As foreign observers stress, and as the PRC's Ministry of Civil Affairs (MCA) has acknowledged, the experience has been mixed, running the gamut from genuinely contested campaigns to carefully controlled contests in which all of the candidates have been screened by the local Party, to old communist-style elections with no more candidates than seats, to simple noncompliance with the law's directive to hold elections.

In Taiwan, direct or indirect elections have been formally in place throughout the years the Republic of China (ROC) has been based on the island. But the breakthrough to democratic elections came only in the late 1980s-1990s, when Taiwan moved rapidly from tolerating the "outside the Party" group's fielding an ever-growing number of candidates, to allowing the opposition to form the Democratic Progressive Party (DPP), to holding genuinely contested two-party and, later, multi-party elections for the legislature, to indirect and, later, direct popular elections for the presidency.

Early in the process, the martial law decree that had suspended key elections and other constitutional provisions was lifted and the anachronisms of a China-wide ROC National Assembly and Legislature (stocked with octogenarians elected on the mainland before the regime fled to Taiwan) were scrapped. In the 2000s, elections in Taiwan passed a crucial test for a maturing democracy, yielding significant turnover in seats in the Legislature and, more crucially, a peaceful transfer of the presidency to the candidate of the former opposition party, the DPP's Chen Shui-bian. Hotly contested elections and turnover of offices have become unquestioned for the major municipal offices and throughout the Taiwan government.

Elections in Hong Kong trace their roots to the colonial government's alarm at having failed to foresee the popularity of early Cultural Revolution radicalism in the territory. But significant steps toward limited elections for colony-wide offices came only in the twilight of British rule. The dramatic breakthrough came under Hong Kong's last colonial governor, amid the panic that the PRC's violent suppression of the 1989 Democracy Movement had sown in the soon-to-revert territory. In crafting the law to govern elections to the last colonial Legislative Council, which was scheduled to "ride the through train" to become the first Legislature of the HKSAR, the government interpreted the applicable provisions of the Basic Law (the PRC-enacted mini-constitution for the HKSAR) in maximally democratic terms. One-third of the seats were elected from geographic constituencies with universal suffrage, one-half by "functional constituencies" broadened so as to give nearly every employed Hong Kong resident a vote, and one-sixth by a committee of directly elected local officials.

Calling this law a violation of the Basic Law and Sino-British agreements, Beijing derailed the "through train" and appointed a Provisional Legislature. After Hong Kong's reversion, the SAR resumed elections for the Legislature, albeit under rules that local democrats criticized as biased toward pro-Beijing candidates. (Democrats complained that the elections were further flawed because the Legislature's political power was growing marginal in an executive-dominated regime. )

ALL POLITICS STARTS OUT LOCAL . . . EVEN IF THERE'S NO POWER
The delegation of Chinese election observers spent part of their time in the U. S. with elected officials who are hardly visible in the media version of American politics because their posts (township executives, city council members and the like) seem so local and lacking in power. But such offices seemed less obviously unimportant to the visitors from Greater China. For all the developments in polity-wide elections in Taiwan and Hong Kong and the refurbishing of the largely empty formalities of nation-wide indirect democracy in the PRC, it is at the grassroots that elections and democracy have first emerged in Greater China, where, echoing Tip O'Neill's observation, all politics at least starts out local.

This has been most obvious in the PRC. Village elections select members of a body just below the lowest level of formal government authority in rural China. Unauthorized experiments with extending the villagers committee elections to the township level were condemned on the grounds that they were unauthorized and not yet suited for widespread implementation, although they drew some interest and favorable comment. Direct elections for legislatures have not risen above the lowest, county-level people's congresses, which wield little power in China's Party-directed pyramid of representative bodies.

In Taiwan too, electoral politics began with contests for relatively minor local offices. Non-Kuomintang candidates were initially allowed to run, and sometimes won, in county and city contests well before the lifting of martial law and the democratizing political reforms of the late 1980s. Under martial law and one-party dominance, these offices held little power. Meaningful electoral politics could be only "local" (that is, no more than provincial) until the early 1990s, when the regime finally discarded the fiction that the ROC government was in temporary exile from the mainland, whose population the National Assembly and Legislature represented.

Much the same can be said of Hong Kong. A meaningful popular role in selecting members of consultative and advisory bodies to the colonial government began at the district council level, in an era when equivalent roles at the territory-wide level remained limited to notables appointed by the governor. Moreover, elections in Hong Kong have always been about only local authority. Ultimate sovereignty resided first in the Colonial Office and Parliament in London and later in the National People's Congress and its Basic Law Committee in Beijing. At the colony and, later, SAR level, the offices up for election have entailed, at best, limited power. In Hong Kong's executive-dominated system of government, only the members of the Legislature, and not the governor or chief executive, have had to win voters' support.

Emergently democratic elections to largely powerless local bodies may seem pointless, but they have their uses for authoritarian regimes, which the PRC, Hong Kong, and Taiwan clearly were at the time such elections began. They act as steam valves for popular discontent, monitoring devices, and cooptation or recruitment mechanisms. For more radical reformers and democrats, such elections can be a precursor to more fully democratic contests for posts with real power in the future. This is, one might argue, what happened in Taiwan and what might have occurred in Hong Kong if politics there had remained on its late-colonial trajectory, or indeed what might occur in Hong Kong if the promises of the Basic Law are fulfilled. This is consistent with official rhetoric concerning what can or should happen in the PRC.

As some of the Greater China delegates saw it, such elections also perform a more subtle function that resonates with the notion of "tutelary democracy" articulated by Sun Yat-sen. Perhaps most striking is the case of Hong Kong's district councils. Election to these local bodies provides experience in campaigning and (in a limited way) governing, and it helps to identify future candidates for more important posts. One view articulated in the PRC and echoed in Taiwan and Hong Kong is that these local elections can cultivate a responsible electorate as well. As the MCA officials frequently put it, a citizenry can rise to the task of electing office-holders even where their educational and economic levels are low, but can only gain the required experience and responsibility by participating in carefully and gradually developed elections conducted under appropriate laws.

ELECTION LAW'S UBIQUITOUS ISSUES
The question of the appropriate content of election laws was clearly on the minds of the Greater China officials and scholars. They discussed several election law issues that, in their broad outlines, would be familiar to their American counterparts.

Restrictions on who can run is a contentious issue throughout Greater China. In Taiwan, for example, a complex set of laws establishes age, education, and experience requirements that rise with the level of office. The constitutionality of some of these laws has been challenged. In Hong Kong, civil servants, some convicted criminals and people who have been non-residents in the recent past are barred from candidacy. Advocates of a disclosure-based system argue that the law should allow an informed electorate to choose whether to keep such people out of office.

In the PRC's nascent system of village elections and indirect legislative elections, legal restrictions on eligibility for candidacy have been less important. But de facto restrictions have been a major issue. Outside observers routinely note, and Chinese officials acknowledge, that local power holders frequently overreach in keeping anti-establishment candidates or those who are critical of the local authorities from standing for election to villagers committees. The MCA has pledged to press for laws to establish greater transparency in the candidate selection process and to promote "true representation" of villagers. While implementation of these laws and the broader issue of vetting candidates in a one-party regime still remain unaddressed, such moves do reflect a genuine concern that de facto requirements for candidacy could compromise the useful functions that local elections can perform for the regime.

The corrupting influence of money in electoral politics has been another controversy in Greater China. In Hong Kong, to reduce the influence of money in politics, laws impose extremely low ceilings on campaign expenditures. Critics see these as creating an excessive incumbency effect, encouraging otherwise honest candidates to seek ways to evade the laws, and doing nothing to prevent most positions in the SAR's more important bodies from going to the territory's business magnates. In Taiwan, laws capping campaign spending, limiting individual and corporate donations, and requiring disclosure of sources of funds have come under attack for limiting political expression. At the same time, these laws have not quieted concerns about vote-buying and the undue influence of large concentrations of wealth, including those of gangsters using ill-gotten gains to secure favors, seats in elected bodies, and immunity from prosecution.

In the PRC, it is not (yet) cash but its residual communist doppelganger, informal power, that has been a major worry. The national laws and provincial implementing legislation for the villagers committees elections have failed to prevent local power holders from using their control of resources and sanctions to assure that the right candidates are elected, or that elections are not held, and that opponents and disenfranchised candidates do not pursue legal or other remedies.

Women's and ethnic minorities' representation is another point of concern throughout Greater China. In Taiwan, a minimum number of seats are reserved for women and members of the island's tiny minority of non-Chinese aboriginal people. While this has raised the discomfort that affirmative action quotas inevitably do, the issue has not been highly contentious, not least because such measures pale in comparison to past practices of hugely disproportionate representation in the nominally democratic institutions of the martial law era. Then, the government was dominated by the "mainlanders," who came over with the retreating KMT regime in 1949 and comprised less than one-sixth of the island's population (but who ostensibly represented the vast bulk of the population of mainland China, over which the ROC regime claimed a right to rule). The legal quotas may also fail to rankle because women ~ most notably the sitting vice president—have risen to positions of prominence in contemporary Taiwan's electoral politics that surpass what reserved seats in elected bodies can confer.

Relevant provisions in the PRC provide that there should be an "appropriate" number of women in elected and representative bodies. This is a normative guideline, not a specific legal requirement. While women occupy only a very small portion of the seats on villagers committees (and other representative bodies), no legal response appears to be in the offing. As an MCA official in the delegation saw it, much of the problem lies beyond legal solution. It requires addressing the need to cultivate and attract in much larger numbers women who are ready and willing to engage actively in grassroots politics, campaign for villagers' votes, and serve energetically on these committees.

The PRC's approach to minority representation has been less laissez-faire and reflects China's long-standing institutions of "autonomous region's (provincial level entities) and autonomous counties or districts (within ethnically Chinese provinces). The village election system has been extended to these national minority jurisdictions, with necessary adaptations to the geographic conditions of "village equivalents" that sprawl over dozens of miles of rugged and sparsely populated territory in Tibet and Xinjiang. In the people's congresses for minority areas, the absence of legal requirements for minority representation has meant little in light of an established practice of assuring that the controlled elections produce substantial minority representation.

Not surprisingly, in Hong Kong, where the Basic Law mandates continuity of many features of colonial-era institutions, laws do not mandate proportions of women or minorities. Relatively few women serve in Hong Kong's elected bodies, especially at the higher levels. But, as a local Hong Kong elected official in the Greater China delegation pointed out, the formidable female members of the SAR's Legislature (and the late colonial Legislative Council) have had political influence out of proportion to their numbers. Representation of the few percent of Hong Kong's population that are ethnic minorities is quite sparse, but not a cause of great controversy. As Hong Kong's reversion to the PRC approached, there was a brief moment of worry that the territory's South Asian minority might be rendered stateless, but the matter was quickly settled. Of greater and more lasting concern is the exclusion from citizenship of a substantial group whose members are mostly minority, female, and poor: the many thousands of (often Filipina) domestic workers who are long-term Hong Kong residents.

NOT ONLY IN AMERICA? ELECTIONS AND LAWYERS
Election laws in the PRC, Taiwan, and Hong Kong have also brought out the lawyers. While no Sinicized version of Bush vs. Gore is likely, litigation over election law violations and lawyerly arguments about the constitutionality of election laws are hardly alien to Greater China. The Grand Justices of Taiwan's constitutional court have been called upon to hear challenges to laws governing campaign spending and candidate qualifications. In the early years of Taiwan's democratization, it was a decision of the Grand Justices that mandated new elections on Taiwan for what had been a nominally all-China-representing body—an important step on the road to the present system of democratic elections to a Legislature representing the people of Taiwan. And, as one scholar of Taiwanese law in the delegation detailed, several other existing or proposed election laws (including one that might ban "gangsters" from running for office) could face plausible challenges in constitutional litigation.

As noted above, the HKSAR was born amid the fall-out of a clash over the interpretation of the Basic Law and PRC-UK international agreements that "derailed" the "through train" for a reversion-straddling legislature. A Hong Kong delegate noted that the HKSAR's tight legal restrictions on campaign spending are an invitation to legal disputes. Because so little could be spent lawfully, office-seekers predictably engaged in campaign activities before formally becoming candidates, prompting allegations of spending limit violations and formal inquiries into election law violations. Additional election law controversies may lie ahead. As an SAR delegate pointed out, for example, the Hong Kong chief executive's power to shape electoral districts could trigger a constitutional controversy, especially if and when a truly democratically selected chief executive uses that power to advantage his party—hardly a far-fetched scenario in a polity that has seen a decade of incessant disputes over the "fairness" of the basic rules for legislative elections.

Even the PRC has not entirely escaped an incipient version of lawyerly argument and the quest for legal remedies under election laws, despite its courts lacking the power of constitutional review and ordinary citizens' aversion to turning to courts. A PRC election official among the delegation touted the determination of a group of villagers from outside Urumqi who were outraged over local officials' refusal to hold the village elections required by law. They made the several days' journey to Beijing to seek legal redress. Far more common are less formal and less far-flung appeals to local authorities above the village level to see to it that the laws governing villagers committee elections are implemented and enforced. And the bureaucrats charged with overseeing elections sound increasingly like lawyers. As the comments by an elections observer from the MCA made clear, the Ministry publicly defines its mission in terms of the interpretation and application of the law governing local elections. Its representatives reflexively invoke provisions in the constitution, the laws governing people's congresses, and the organic and electoral laws for the villagers committees as core elements of an answer to the question of why democratic direct elections cannot proceed for representative organs in China above the village level.

AMERICAN DEMOCRACY AND CHINESE DEMOCRATIZATION
While the delegation found much that was at least broadly familiar in the U. S. electoral process and election laws, several features were jarringly foreign, especially those that reflect American federalism and separation of powers. The electoral college (with its winner-take-all, state-by-state elections and the consequence that the victorious presidential candidate could have finished second in the popular vote), the authority of states to adopt different election rules, the different voting technologies within states, and the power of state legislatures to draw districts for federal legislators seemed bizarre to some of the visitors. Despite the emergent roles of judges and lawyers in their home systems, delegates were alarmed by the U. S. courts roles in the 2000 presidential election and, in 2002, in the substitution of Senate candidates in New Jersey and Minnesota, and reports of lawyers for both major political parties standing ready to spring into action at the first sign of irregularities on Election Day.

Less publicly discussed among the delegation is another striking set of contrasts: the vastly different levels of democratization evident across the polities in Greater China whence the observers came. Genuinely democratic elections for offices that matter have become the norm in Taiwan even though its democracy still faces real challenges from a shifting and fragmented party system, money politics and gangster politics, and unresolved structural tensions in a mixed presidential-parliamentary system. This contrasts sharply with the PRC's incompletely and problematically implemented system of villagers committee elections, its mostly indirect and undemocratic elections for formal but powerless representative bodies, and its indefinite postponement of more robust democratization and higher-level direct elections. Hong Kong's elections lie somewhere in between and in flux, with the Basic Law promising much in the future, current laws and practices delivering something else, and critics seeing a slide toward less in reality if not in form.

Despite these deep dissimilarities, as the collegial rapport among the delegates underscored, there are common themes in elections and democratization in Greater China that go beyond the shared starting points in local elections, their common concerns with several election law issues, and the growing importance of legal arguments. Democratization in Greater China retains, as one delegate disparagingly put it with respect to his own jurisdiction's election laws, a somewhat paternalistic cast, manifested in a lingering reluctance to entrust the electorate with unfettered choices among a full range of candidates free to spread their messages as they wish. Such paternalism might reflect an oft-cited feature of Chinese political culture: the fear of the "internal chaos" that might be spawned by letting too much power flow to the unguided people. This was a constant refrain in limiting the reach of elections in the early days of democratization in Taiwan and Hong Kong. It persists as orthodoxy in the PRC today and surfaced in PRC delegates' comments defending the limited role of direct elections on the mainland. While that cultural trope may endure, the notion of a deep-seated "fear of chaos" can no longer support the weight of an argument that China is inhospitable to democracy. That argument, which survived well into the 1980s, is now clearly dead. It cannot stand in light of a decade and a half of electoral developments in Taiwan and Hong Kong, and the official—if still badly unfulfilled—promise of the ultimate role of elections in the PRC.I welcome your questions.


Republished by permission from Foreign Policy Research Inst. E-Notes, Nov. 12, 2002.


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