_Secession or Autonomy in China_ Wing C. Ng Table of Contents I. Historical background of Tibet, Taiwan and Hong Kong in relation to China. II. Provisions of international law: A) Self-determination B) Preservation of territorial integrity of states C) Synthesis? III. Constitutional provisions on secession on the world scene: U.S., Canada, USSR, Russia, Germany, India IV. Constitutional provisions in China, past, present and future: Qing dynasty, ROC, PRC, Federal Constitution. V. Proposed factors to assess whether secession is justifiable: A) secession receives overwhelming support by the inhabitants. B) secession is justified by unrelenting oppression. C) the territory is geographically compact and relatively homogeneous in population. D) secession can be done in a peaceful manner, resulting in minimal harm to the state from which it secedes. VI. Prospects of secession or autonomy A) Tibet B) Taiwan C) Hong Kong _Abbreviations_ PRC People's Republic of China ROC Republic of China PLA People's Liberation Army of the PRC SAR Special Administrative Region NPC National People's Congress of the PRC CCP Communist Party of China In many countries in the world, there exist groups of people who would like to separate from the existing state and form their own sovereign states (secession), or, to rule themselves within their territory while remaining a part of the existing state (autonomy). Typically, these groups of people, which I for convenience call the minority, are characterized as different from the majority in the existing state (sometimes called the parent state) in ethnic group, language, tradition or culture. [1] These aspirations receive support in international law in the form of the generally accepted principle of self- determination. However this principle is only applied to regions which are labeled as colonies of the existing state. Because almost all countries have interest in self-preservation, the principle of territorial integrity of existing states is also generally accepted in international law, _unless the minorities are oppressed on the basis of race, creed or color. [2] In this paper, I explore the issue of _all-inclusive, non-discriminatory oppression, whereby it is argued that when a government oppresses all its citizens without regard to race, creed or color_, there should also be justification under international law for a minority to advocate secession. International law generally operates by consent of the sovereign states, and there is little enforcement mechanism if any existing state fails to abide by it. Most countries in the world do have some form of a constitution that specifies how the state is to be governed, and since unhappy minorities exist in most countries, it is reasonable that provisions should be made in the constitutions to address the question of secession by minorities. In fact, very few states provide for the legalities of secession: whereas the former USSR guarantees the right of secession, the PRC explicitly prohibits it. The constitutions of Russia, Germany and India provide that agreement of the federal legislature is necessary for boundaries of states to be changed, while the constitutional texts of the U.S. and Canada are totally silent on secession. [3] Secession should not be undertaken lightly: in many cases armed conflict results. The U.S. fought the War of Independence to secede from the British Empire, and it also fought the Civil War to prevent the secession of the South. Recent tragic events in the Yugoslav regions of Bosnia and Kosovo demonstrate vividly the costs that can accompany secession movements. It is preferable that secession be accomplished peacefully in accordance with the constitutional provisions of the existing state, and so it is desirable for countries in the world to provide explicitly the way to accomplish secession. _Providing a safe, peaceful exit within the legal process internally may well mean that the minorities would respond with appreciation and be satisfied with staying in the existing state. If secession cannot be resolved internally, it would be up to the world community to take sides as to whether to support any given secession movement. I explore certain criteria [4] that were proposed to evaluate whether a secession movement should receive international support: one, secession receives overwhelming support by the inhabitants, two, secession is justified by unrelenting oppression, three, the territory is geographically compact and relatively homogeneous in population, four, secession can be done in a peaceful manner, resulting in minimal harm to the state from which it secedes.
I have personally be involved with trying to find a solution of dissatisfied minorities in China, by working together with some Chinese living outside mainland China, and together we drafted a proposed future constitution for a Federal Republic of China. The proposal recognizes the principle of self- determination. The drafters however all believe in the Union and hope that the enactment of this kind of legal framework will, in our wishful thinking, encourage pro-Union sentiments among the minorities. In this article, I shall examine in Section I the history and politics of the regions of Tibet, Taiwan, and Hong Kong in the context of China. In Section II, I shall apply the international law analyses to those situations, and in Section III, I shall examine the comparative treatment of secession under the constitutions of several major countries in the world. In Section IV, I present constitutional provisions in China, past, present and future, under the Qing dynasty, ROC, PRC, and the Chinese Federal Constitution. In Section V, I apply the proposed justification factors of secessions to those regions, and in Section VI, I assess their probable prospects of secession or autonomy. I. _Historical background of Tibet, Taiwan and Hong Kong in relation to China_. A) _Tibet_ Tibetans speak a Sino-Tibetan language [5]; this means that the Chinese and Tibetan languages are related. Chinese history recorded the activities of certain proto-Tibetans from before 1000 BC [6]. Tibetans organized into a state around 500 AD, at the time of the Tang dynasty in China. The name of the state in Chinese is "Tubo", which is certainly related to "Bod", the Tibetan name for Tibet, and to the name "Tibet" itself. There is no doubt that Tubo/Tibet was an independent sovereign state [7], and it engaged in war and peace with Tang China. Two Chinese princesses married Kings of Tibet, and so the royal families were related by blood, and the friendly relationship, when it existed, was closer than most other cases. In 822 Tang China and Tibet concluded a peace treaty [8] that both sides have argued favor their cause: the Chinese [9] argue that they "have agreed to unite their kingdoms... ", while the Tibetans argue that they are separate states "the Tibetans shall be happy in Tibet and the Chinese happy in China and the great kingdoms united" and the Chinese then retorted that this very sentence contains "the great kingdoms united". I have read this phrase in the treaty in the original Chinese "sheji wei yi" [10], and it literally says "the state machinery shall be one". I think that historical events in Sino-Tibetan relations are distorted by the east Asian tradition to save face. All sides seize upon documents that are ambiguous in the slightest to justify their own position. In the 11th century the Mongols conquered most of Asia and large parts of Europe. Song dynasty in China was destroyed, and Tibet voluntarily submitted to the Mongols. [11] The Mongol empire was divided into several Khanates, and the most important part was ruled from Beijing, known as the Yuan dynasty of China. That part of the empire, Yuan, also administered Tibet. The Mongol Yuan emperors were converted to Tibetan Buddhism and many Tibetan monks took up residence in Beijing as tutors of the emperor and enjoyed a privileged existence. [12] The PRC issued a White Paper [13] on Tibet in 1993, and it claims today that "Tibet became part of China" during the Yuan dynasty. The Yuan dynasty was overthrown by the Han Chinese in less than a hundred years, and during the Ming dynasty [14] the Chinese court had periodic contacts with Tibetan official delegations "paying tribute". The PRC government claims that Tibet continued to be part of China during Ming. In the same period, Tibet became a theocracy, wherein the Dalai Lama became the sovereign of Tibet, and upon his death the title passed on to the next reincarnation. In 1644 the Ming was replaced by the Qing dynasty, in which the emperors were ethnic Manchus. A Mongol chieftain named Gushri Khan invaded Tibet and obtained the submission of the Dalai Lama, and he then in turn submitted to the Qing emperor, bringing with him the Tibetan territory he acquired.[15] The Dalai Lama went to Beijing to meet with the emperor, and Qing China became then an overlord of the Dalai Lama. Qing emperors sent ambans to Tibet and they have equal or higher authority than the Dalai Lama. When foreign armies invaded Tibet, or when internal disturbances occurred, Qing China sent troops to pacify Tibet. Tibetan Buddhism considers the emperor of China as the incarnation of the Manjushri bodhisattva, much like it considers the Dalai Lama as the incarnation of Avalokiteshvara bodhisattva. The Dalai Lama prefaced each one of his political proclamations by "in the name of the Emperor, Manjushri incarnation, I, proclaim ... ." [16] In the 19th century Europeans colonized parts of Asia: the British colonized India and the Russians subjugated central Asia and Siberia. Both were interested in Tibet, but found the Chinese already entrenched there. Britain and China signed the Adhesion Treaty of 1906, in which Britain acknowledged Chinese sovereignty in Tibet, while the Chinese promised to exclude all other foreign powers, so as not to disturb the status quo of Tibet. In 1907 however Britain and Russia signed the Convention Between Great Britain and Russia, unilaterally downgrading their acknowledgement from Chinese sovereignty to Chinese suzerainty. [17] When the republican revolution erupted in China in 1911, the Dalai Lama government of Tibet decided to eject the Chinese troops and to declare independence. The ROC ignored the declaration and proceeded to mend relations with the Dalai Lama so as to keep Tibet within the Republic. The ROC was militarily weak and from the 1930s on was embroiled in the War of Resistance Against Japan, which later coalesced into World War II. It was in no position to assert sovereignty in Tibet during this period, while Tibet attempted, without success, to gain international recognition of its _de facto_ independence status.
In 1949 the Communist PLA defeated the ROC military on the mainland and established the PRC. In 1950 the PLA marched into Tibet and decisively defeated the Tibetan army. The appeals by the Tibetan government to the international community were ignored and it had to conclude the 17 Point Agreement with the central government of the PRC, acknowledging Tibet to be a part of China. [18] The 17 Point Agreement allowed the Dalai Lama government to continue to function in Tibet as before. However, frictions and misunderstanding escalated into guerilla actions against the PLA in eastern Tibetan regions, and in March 1959 the Dalai Lama decided to flee into India. Thereupon the PRC replaced the theocratic government of Tibet, installed the Tibetan Autonomous Region government, and also proceeded to reorganize Tibetan society according to Communist principles. [19] I am skeptical that Tibet was part of China during the Yuan and Ming dynasties. However, it was certainly part of China in the eyes of the Qing emperor. The Qing empire had an inner core of Manchuria and Han areas, a middle layer consisting of lands with "local chieftains" (_fan-bu_ in Chinese), and an outer layer consisting of tributary states with full-fledged kings who submitted themselves as subjects of the Qing emperor. The middle layer would be the Mongol and Uighur areas, while the outer layer would be states like Korea, Vietnam, Ryukyu, and Burma. [20] In 1728, dispute occurred as to the line of demarcation between Guangdong province and Vietnam, and the emperor Yong Zheng decreed that the line should be drawn in favor of Vietnam. He continued to write in the imperial edict "since both sides of the line belong to Me, it does not matter where to draw the line." [21] [22] The Chinese historians claim that Tibet is in the middle layer like the Mongol and Uighur areas, while Tibetan historians claim that Tibet was independent, or at most an outer-layer tributary state acknowledging suzerainty of the Qing emperor. It is apparent from the above incident that the emperor regarded all of his realm to be equally under his jurisdiction, no matter which layer it happens to be in. States obtain territories by 1) taking over empty land, 2) conquering, or 3) getting consent of the original owner. The emperor of Qing China probably obtained title to the territory by consent of the Tibetan government, as no force or coercion was employed. When the Dalai Lama traveled to Beijing to meet the emperor, he was treated with the highest honor and respect. Indeed, Tibetans argue that he was the equal of the emperor. [23] However, that argument is not persuasive, as it was the Dalai Lama who invoked the political authority of the emperor when he promulgated edicts, while the emperor might occasionally invoke the religious authority of the Dalai Lama, he never invoked the Lama's political authority. It is generally recognized that, a sovereign state must satisfy the requirements of territory, population, government, and relations with other sovereign states [24]. During 1911- 1950, Tibet undoubtedly had territory, population and government. Some people quibbled that Tibet was not recognized by one single other sovereign state, while other people countered that Tibet insisted on an isolationist policy and did not request or even welcome foreign relations. When Rhodesia unilaterally declared its independence, the world did not acknowledge Rhodesia [25] as a sovereign state. Tibet at best unilaterally declared independence, and it was likewise never a _bona fide sovereign state even during 1911-1950. In my opinion, Tibet was a part of the Qing empire from the 1700s to 1911. It obtained _de facto independence in 1911- 1950, but it was returned to the PRC, the successor of Qing, by force and threat of force. B) _Taiwan_ People from China settled in Taiwan for some five hundred years, marginalizing the aborigenes in the same manner as Native Americans are marginalized. China was forced to cede the island of Taiwan to Japan following its defeat in the Sino-Japanese War of 1894. [26] In 1943, the Cairo Declaration [27] by the Allied nations of the U.S., Britain and China stated that the war gains of Japan shall be restored to the previous owners and Japan shall be those four main Japanese islands and certain small islands that the Allies will specify. At the War's end, China took back Taiwan, the USSR took back the Kuriles and Sakhalin, while the U.S. proceeded to administer Ryukyu/Okinawa. While some people quibbled that Taiwan, as a previous colony of Japan, should be allowed the option of independence, it is generally accepted that Taiwan returned to China's sovereignty in 1945. The revolution of 1911 overthrew the Qing dynasty and established the ROC, which became universally recognized as the sole government of all China and the successor of the Qing empire. In 1949, the Communist revolution overthrew the ROC and established the PRC. However, the ROC was not totally destroyed, for its president, Chiang Kai-shek, the government and military retreated to Taiwan. From 1949 to 1988, when the ROC presidency was occupied by Chinese mainlanders, first Chiang Kai-shek and then his son, no one raised the question of an independent Taiwan, for advocates would be prosecuted for treason. The ROC simply asserted that it was the sole legitimate government of all China, whereas the PRC was merely an illegitimate regime of Communist bandits. For its part, the PRC proclaimed the mirror message, that it was the sole government, while the ROC were bandits sequestered in Taiwan and about to be liberated. The U.S. continued to recognize the ROC as government of all China for thirty years after 1949, until 1979, when it switched recognition to the PRC. The U.N. recognized the ROC as representing China until 1971, when it ejected the ROC and admitted the PRC. [28] Whenever the PRC establishes diplomatic relations with any other state, it insists that the other state break diplomatic relations with the ROC and acknowledge that Taiwan is a part of One China. Since the PRC is large and powerful, most states in the world are eager to establish diplomatic relations with it, and in doing so are then endorsing the PRC position that the ROC is not a state and that the PRC should rule Taiwan. Today, the ROC position is that it is still the government of all China, but its jurisdiction reaches only Taiwan. Most recently in July 1999, president Lee Teng-hui proclaimed that ROC-PRC relations should be "state-to-state" [29] on the East- West-Germanies model. The PRC insisted on its old formulation and issued a White Paper [30] in Feb. 2000. The PRC position is totally untenable. From the point of view of international law, the ROC is a sovereign state satisfying all the criteria, and the PRC-ROC relation is indeed a mirror image of the FRG-GDR relation in Germany from 1949-1990. Furthermore, the PRC position is simply untenable from the point of view of Chinese historical tradition, for China was split among more than one jurisdictions many times in its long history. In a 1995 publication [31], I, writing under the _nom de plume of Diaoyu Lang, argued: There are two Chinas in objective reality. There have often been two or more Chinas in history, during the Warring States, during the North-South Dynasties, between Tang and Song, between Song and Yuan, between Ming and Qing, and since Oct. 1, 1949. Two Chinas were created because of civil war, when both entities wanted to rule All China, when they wanted to "chase the deer in the Central Plain". Historically, the stronger side took North China, and always wanted to "unify China", while the weaker side stayed in the South, and was satisfied to be the government of a part of China, hoping it will get peace from the North. This is known as "pian an". Exactly this situation has prevailed since about 1966, when Chiang Kai-shek finally gave up the last of the flimsy chances to "retake the Mainland". The ROC was satisfied to be government of Taiwan and a few tiny islands, while the PRC was still bellowing to "liberate Taiwan, and unify China". Since 1978 or so, the PRC has stated that it intends to "peacefully unite China". It embarked upon a rather successful program of economic reform and modernization. In 1984, when Deng Xiaoping was hailed by Beijing students as "Xiaoping nihao", Chiang Ching-kuo's government ordered the assassination of Jiang Nan in San Francisco, and the PRC was better than ROC in many respects. But ROC caught up and surpassed. Not only is the ROC GNP per capita now at West European levels, it also successfully democratized, and all officials and l is the ROC GNP per capita now at West European levels, it also successfully democratized, and all officials and legislators are now directly elected in free multi-party elections. The president of ROC will be directly elected in March 1996. On the other side, June 4th happened. Civil war is usually wrong. Chinese end up killing Chinese. PRC's official ideology teaches us to analyze two opposing sides and decide which one is progressive and which one is regressive. It teaches us that Han dynasty was good and Xiongnu was bad, because Hans were only feudal, while Xiongnu's were slave-owning. It teaches the same thing about the Song vs. Mongols, the Ming vs. Manchus. I have no doubt that ROC has become a better society than the PRC, in its economic achievements, as well as the freedom of the political process it provides to its citizens. It has retaken the Mandate of Heaven. Historically though, the "Mandate of Heaven" was not awarded on the basis of progression vs. retrogression, rather it was awarded on the basis of military strength, "those who won the war became the Emperor, those who lost the war became bandits". Mao Zedong's famous "political power comes from the barrel of a gun" certainly agrees with this traditional rule of the game. I am stubborn: while the good side often loses, I nevertheless support the good side, even thought it may be the weak side too. I oppose restarting the civil war in China; I especially oppose the retrogressive side attempting military conquest of the progressive side, to snuff out the only free and democratic government that ever existed on Chinese soil in 5,000 years. C) _Hong Kong_ Hong Kong was China's territory for at least two thousand years. In the last months of the Song dynasty, when the Mongols subjugated all China, the Song emperor took refuge in the tiny area around Hong Kong and some relics were found there in modern times. [32] The British came to East Asia in the 19th century and insisted on free trade with China, including sale of opium. The Qing China government was generally opposed to free trade, and more particularly opposed the import of opium. War ensued, China lost, and Hong Kong was ceded to Britain in 1841. The territory was enlarged in 1860 and further enlarged in 1898, in the latter case by way of a 99-year lease (without rental payments) terminating in June 30, 1997. Because Britain was obligated to return the leased territories in 1997, negotiations began in 1982 [33] for the return of all of Hong Kong. China contended that the treaties were void _ab initio_, and China has always retained sovereignty, because they were unequal treaties, and Britain disgreed. This disagreement on principle was papered over and did not prevent them from coming to agreement in a Joint Declaration in 1984. It provided that Hong Kong would be returned on June 30, 1997 in its entirety, and the PRC promised a high degree of autonomy in a one-country, two-systems formula, so that the capitalist system would be retained in Hong Kong, the human rights provisions of the International Covenant on Civil and Political Rights would apply in Hong Kong, and the Legislative Council would be constituted by elections. These promises were formalized in the Basic Law [34] for Hong Kong, promulgated in 1990. The Joint Declaration was written in vague general language so as to have an agreement even though the parties disagree on the details. During the thirteen years of what was left of British rule, many disputes [25] erupted between Britain and the PRC as to how to implement the Joint Declaration. The PRC understood "election" to be not necessarily one-person one-vote universal suffrage. Rather, it provided for legislators to be elected by functional groups, such as all licensed lawyers, the chambers of commerce, and so on. For the last election of 1995, the British provided for a liberal scheme of electing legislators, which the PRC vehemently opposed. It promised to replace the entire legislature by its appointees in 1997. Britain requested the PRC to consent to jurisdiction by the International Court of Justice on the dispute on the Hong Kong Legislature, and the PRC refused. The British interpreted the provision regarding the Court of Final Appeals allowing "foreign judges" to mean more than one judge; the PRC said that no plural is indicated in the Chinese version, since there is never plural indication in the Chinese language in all cases. In spite of many disagreements, Hong Kong was returned to China on time in a solemn ceremony midnight of June 30, 1997. The British Governor was replaced by a Chief Executive from Hong Kong, and the Legislative Council was replaced totally with PRC appointees. But elections were indeed held one year later, in a less liberal PRC-approved scheme, for the Legislature, and the elections were generally seen as fair and uncorrupted. Changes were minimal from external appearances. No street names were changed, and even "King's Road" retained its name. Most government offices fly the Hong Kong SAR flag, and only very few of them fly the PRC flag. The PRC military is present in the barracks but nowhere to be seen in town. I managed to see one single PLA during three post-1997 visits, and he sweeping the grounds in a barrack in outlying rural area.
The most troubling incident occurred in the judiciary. The Basic Law provided for rights of abode for children of Hong Kong residents born outside of Hong Kong, in the rest of China or anywhere else in the world. The issues went up to the Court of Final Appeal in Hong Kong, as to whether illegitimate births count, and as to whether the children born to parents not residents at the time of birth and who subsequently became residents qualify. The Court of Final Appeals, in a courageous opinion, emulated the U.S. Supreme Court in the _Marbury opinion to appropriate for itself the right to judicial review of all acts of the governments of China and Hong Kong as to consistency with the Basic Law. It then decided in the affirmative to both issues. The Basic Law provides for interpretation by the NPC of China, but it delegates the power to the Court of Final Appeals on matters involving only Hong Kong. The Hong Kong SAR then took the matter to the NPC for interpretation, and the NPC reversed the Court of Final Appeals on both issues. It reasoned that the matter involved the rights of mainland Chinese citizens and is beyond the jurisdiction granted to the Court of Final Appeals, and it knew the original intent behind the enactment of the Basic Law as to who should be qualified as children of Hong Kong residents. [36] Interestingly, the NPC never commented on the power of judiciary review that the Court of Final Appeals appropriated for itself, presumably leaving it intact. The case aroused fears in Hong Kong that the rule of law is dead. Whenever the SAR government loses a case at the Court of Final Appeals, it may appeal further to the NPC. The NPC is a political body controlled by the CCP, and issues whatever opinion the CCP happens to hold. On the other hand, anyone else who lost a case to the SAR government will almost certainly be ignored if she attempts to appeal to the NPC. II. _Provisions of international law_: A) _Self-determination_ It is provided in the Charter of the United Nations, Chap. I, art. 1, 2. To develope friendly relations among nations based on respect for the principle of equal rights and self- determination of peoples, and to take other appropriate measures to strengthen universal peace; and in Chap. XII, art. 76, b. to promote the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development towards self- government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned, and as may be provided by the terms of each trusteeship agreement; The International Covenant on Civil and Political Rights, part I, art. 1 states: 1. all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. The International Covenant on Economic, Social and Cultural rights, part I, art. 1 is identical. In G.A. Res. 1514 of 1960, the United Nations proclaimed: Solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations; And to this end Declares that: 1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation. 2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. There is thus support in international law for all colonized peoples to exercise self-determination. B) _Preservation of territorial integrity of states_ It is provided in the Charter of the United Nations, Chap. I, art. 2, [37] 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII. which would prohibit United Nations action on any domestic matter, including the member state's treatment of its minority populations. The reference to Chap. VII, Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression, provides Art. 39. The Security Council shall determine the existence of any threat to the peace, breach of peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. and it would be only when the domestic matter involving minority populations rises to the level of a threat to peace, that the United Nations may be authorized to act through the Security Council. Furthermore, the United Nations declared in 1970 in G.A. Res. 2625, [38] Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed, or colour. C) _Synthesis?_ These United Nations provisions, when read in conjunction, would suggest that self-determination applies _only to colonized people, and that a people is _not colonized if it receives equal representation in the national government without distinction as to their minority status. This definition of colonized people may comport with the general perception of the liberation of colonies in history. All of the European colonies in other parts of the world do not receive equal representation in the national government as the population of the metropolitan power. Clearly so in the case of India under British rule, for the population of India exceeds that of the British Isles by more than a factor of ten. Even in the case of the American Colonies, where the settlers were predominantly ethnic-British and indistinguishable from the British in Britain, one of the issues of the American Revolution was that the Colonies were not adequately represented in the British Parliament. Related to the contemporary situation, this means that Hawaii, represented "without distinction" in Congress, is not entitled to self-determination, while Guam and Puerto Rico, which are not represented, is so entitled.
The Tibetans claim that they formed an independent state that was colonized by the Chinese, and so they are entitled to self-determination and decolonization in accordance with international law. In fact their position goes farther, and they claim they are an occupied country, (and the U.S. Congress agrees,) [39] akin to France in 1940-1945, thus implying that a state of war still exists. If this is indeed correct, then they are definitely entitled to driving out the Chinese by all means from their country. The Chinese however claim that Tibet continuously formed a part of China for at least several hundred years. During imperial times, the emperor was an absolute ruler and none of his subjects were entitled to any rights, but this applied equally to Han Chinese and to Tibetans. The Chinese rule in Tibet was benign and the Dalai Lama government was allowed to function as a local autonomous government with little interference. Since the PRC liberated Tibet in 1950, the local government received autonomy, but more importantly, the Tibetans were represented in the central government equally without distinction. The Tibetans elect their deputies to the central government in exactly the same fashion as the rest of China.[40] Indeed the Tibetans, and other minorities, receive certain preferences, in entering university, and being allowed to have more children, for example. Therefore self-determination does not apply. However, it is well known that elections anywhere in the PRC (except Hong Kong) are neither open nor fair. In fact no one, Han Chinese or Tibetan or any other race, who are PRC citizens have any say in the way they are being governed. The application of these principles becomes very awkward in the case of Taiwan. Citizens of Taiwan already live in a separate Chinese state, exercising their ballot in rather open and fair elections and enjoying a large measure of human rights. They are already well represented in controlling their affairs in their own central government. They elected their own president in a open, fair, hotly contested, universal-suffrage election on March 18, 2000. The PRC argument is that Taiwan has been offered to re-unite with the mainland while keeping all of their political and economic freedoms, in the one-country two-systems scheme being practiced in Hong Kong. The Taiwanese will of course be represented in the central government of China on an equal basis, and indeed the PRC hinted that they will also receive preferences. There is no question that the Chinese settlers in Taiwan belong to the same ethnic group and culture as Han Chinese on the mainland, and there can be no distinction as to race, creed or color. The only issue, argues the PRC, is that Taiwan is on a path of dismembering territory from the motherland. Any foreign country like the U.S. that supports Taiwan would be interfering in matters of purely domestic jurisdiction for China. It then cites the U.S. Civil War as precedent to justify reserving the right to use force to prevent such dismemberment. [41] The Taiwan people [42] argue that the ROC has always been a sovereign state since its founding in 1911 as the government of all China. It was the CCP that rebelled against the legitimate government. The ROC still receives recognition by some thirty countries in the world (as the government of all China). At this time, they argue, they are not willing to negotiate re- unification because the PRC is a dictatorship. The dismemberment issue does not arise, as they are always open to re-unification once the PRC turns democratic. Hong Kong was a British colony, and it was decolonized. The only issue was that it could have been offered independence. Even though it is small, it has actually twice the area and population of independent Singapore, and could have easily become a sovereign state. But PRC was resolutely opposed, and there was no way that any power would have been able to force it to agree to Hong Kong independence. Hong Kong was given a high degree of autonomy, with no change in its capitalist system. While the PRC has been opposed to expanding democratic institutions in Hong Kong, nobody was able to vote for essentially anything before 1984 [43] under British rule. Moreover, Hong Kong people are represented in the central NPC to the same extent as other Chinese people, meaning none of these "representatives" are elected, just like none of the NPC representatives anywhere in the PRC are not properly elected. [44] Moreover, most people in Hong Kong identify themselves as citizens of China. Whereas Taiwan is separated from the mainland by the Taiwan Straits, Hong Kong has always had close ties overland with the neighboring province of Guangdong, with which Hong Kong shares the same dialect, culture, ancestry, intermarriage, and many commercial relationships. As Guangdong becomes wealthier, difference in outward appearance across the boundary diminishes rapidly. Hong Kong enjoys better democracy, freedom and rule of the law than Guangdong, and it is also insulated from the mainland by border control (even after the handover) and the one-country two-systems policy. Interference in Hong Kong internal affairs by the mainland government has been minimal and less than was expected by most observers before the handover. As a result, separatism and self-determination enjoy genuinely little support in Hong Kong, as long as the one-country two-systems policy continues to work without too much problem. III. _Constitutional provisions on secession on the world scene_: In order to provide the certainty of an orderly process, it may be advantageous to provide the legal framework of secession in a constitution. The proposed federal constitution for China provides for a binding referendum process for secession. On the world scene, whereas the constitution of the USSR guaranteed the right of secession, while the PRC explicitly prohibits it. In between the extremes, the constitutions of Russia, Germany and India provide that agreement of the federal legislature is necessary for boundaries of states to be changed. The texts of the U.S. and Canada constitutions are silent on secession. A recent opinion Canadian Supreme Court holds that when a clear majority of a province votes to secede, the federal government and that province should negotiate the terms of secession. A) _U.S._ The U.S. Constitution is silent as to whether there is right of secession by the States. It is generally agreed that the Civil War settled that question in the negative. In fact several Supreme Court cases decided civil claims related to the secession or rebellion by the States after the Civil War. In _Texas v. White_, 74 U.S. 700 (1868), deciding the disposition of certain bonds, the Supreme Court held that the U.S. is an indissoluble union and cannot be dissolved for any reason. In _Taylor v. Thomas_, 89 U.S. 479, 486 (1874), the Supreme Court held that the "cotton money" issued by the State of Mississippi during the "late rebellion", "And that on the rebellion being suppressed, the notes", "inasmuch as they were issued 'against the public policy and _in violation of the Constitution of the United States [my emphasis], are therefore, illegal and void.'" There remains the question of what procedure would be required for a State to secede legally. The Philippines did become independent by act of Congress, but the Philippines was not a State. Since new States can join the U.S. by act of Congress, presumably that is also enough for States to secede. No one knows the answer. B) _Canada_ Likewise, the text of the constitution of Canada [45] does not provide for the unilateral secession by a province. The government of Quebec Province has however been exploring secession from Canada, and twice conducted a referendum of its voting citizens on that very question, so far without success. The Supreme Court of Canada issued an advisory opinion, _Reference Re Secession of Quebec_, No. 25506, 1998 Can. Sup. Ct. LEXIS 39 on the issue of secession by Quebec. It is most remarkable in its clarity, civility, reasonableness, and adherence to norms of humanity, compassion and international law. It affirms that, _first_, a vote by a clear majority of Quebecers to secede is democratically legitimate and should be cause for the initiation of the process of negotiation to achieve a fair result for all concerned parties. _Second_, negotiation is required for the secession to be legal, for it denies that Quebecers are justified to claim the right to unilateral self- determination from international law, because they do participate fully and equally in the governance of Canada and are by no means oppressed. Quebec may well be unable to gain international recognition if it secedes unilaterally. Even if it does succeed in gaining recognition because of the _fait accompli_, that course of action is not a just cause because it contravenes both the Canadian constitution and international law. The advisory opinion by the Canadian Supreme Court did not quiet the legal arguments on either side. One writer concludes that: [46] The principles of effectivity, self-determination, and sovereignty of nations do not afford Quebec the right to secede unilaterally under Canadian or international law. [...] Given all of the hurdles that French-Canadian separatists face to effect secession, it is highly unlikely that Quebec will gain independence from Canada at any point in the near future. Another writer comes to the opposite conclusion: [47] Quebec may not be permitted to secede unilaterally, but it may attempt secession after fulfilling two requirements. [...] After decades of fighting for independence, Quebec finally has some hope.
In this connection, I would argue that, in order to provide the certainty of an orderly process, it may be advantageous for the framers to provide the explicit legal framework of secession in the text of the constitution, rather than having to engage in endless arguments of this sort. In contrast, the proposed federal constitution for China provides for a binding referendum process for secession. C) _USSR_ The constitution of the USSR [48] is most remarkable in that it explicitly allows secession: Article 72. Each Union Republic shall retain the right freely to secede from the USSR. No one expected seriously to exercise that particular right, when the USSR was a totalitarian communist dictatorship. But then Mikhail Gorbachev attained supreme power in the USSR and proceeded to loosen controls. The economy of the USSR also deteriorated precipitously. The Republics in the Union began to test their rights at secession. First the Baltic Republics seceded, and the USSR did not recognize their independence. Then a coup by hardliner Communists was attempted against Gorbachev in August 1991, and the Union was further weakened. In November the large Republic of Ukraine voted overwhelmingly in favor of secession [49], and the Russian Republic under Yeltsin agreed. With the Russian Republic being out of control, the underpinning of the USSR disappeared, and Gorbachev went on television at Christmas 1991 to declare that the USSR ceased to exist. The lesson to be drawn from the Soviet (and perhaps Yugoslav) experience might be that dictatorship might succeed over a long time to suppress dissent and keep restive minorities inside the giant prison of the evil empire, once that tight lid is slightly opened, the pent-up resentment would explode and destroy the empire forcibly kept together by only brute force. D) _Russia_ After the dissolution of the USSR, the constitution of the Russian Federation [50] no longer mentions an unconditional right of secession. However, it does mention self-determination, Article 5. [...] 3. The federated structure of the Russian Federation shall be based on its state integrity, the uniform system of state power, delimitation of scopes of authority and powers between the bodies of state power of the Russian Federation and the bodies of state power of the subjects of the Russian Federation, equality and self-determination of the peoples in the Russian Federation. [...] but it also requires the subjects (constituents) of the Federation to obtain mutual consent to change its status, Article 66. 5. The status of a subject of the Russian Federation may be changed only with mutual consent of the Russian Federation and the subject of the Russian Federation in accordance with the federal constitutional law. Russia is engaged in war in Chechnya to prevent secession. According to the Russian constitution, the secession is illegal, as Chechnya never obtained mutual consent and acted unilaterally. However, questions were raised [51] that Russian troop withdrawal by itself virtually guaranteed an independent Chechnyua, whether Russia formally agreed or not. A second argument was that the excessive civilian casualties violated jus ad bellum, the law of war. E) _Germany_ The constitution of Germany [52] is interesting in that it incorporates public international law as part of federal law. It also has intricate machinery for referendum in the affected States when "new delimitations in federal territory" occurs. No territory in today's Germany can be said to have any separatist tendencies, but there may be territories that used to be part of Germany that may one day be re-admitted. That possibility actually occurred when the States in the former East Germany applied to be admitted into the Federal Republic in 1990. F) _India_ India [53] is a Union of many different ethnic groups, of different languages and religions. It is also embroiled in perennial dispute with Pakistan on the disposition of the mostly Muslim region of Kashmir. Its constitution also does not specify any right of secession. Rather, it enables Parliament to "alter the boundaries of any state". There is also interesting provision to make Hindi the official language, but to also keep English as official language for as long as necessary, to placate the non-Hindi-speaking population. IV. _Constitutional provisions in China, past, present and future_: A) _Qing dynasty_ There was no real constitution during the Qing Empire. There was a draft constitution specifying the Emperor as holding all powers. However, when the Emperor abdicated in favor of the Republic in 1911, he (or his regent, as he was a minor) made a statement emphasizing the need for equality of the Hans, Manchus, Mongols, Uighurs, and Tibetans [54] together in the new Republic. In response to this entreaty, the flag of the Republic for some twenty years was a five-color emblem, symbolizing the Five Races of the Republic. B) _ROC_ The ROC constitution [55] was only ratified on Decemeber 25, 1946. Within three years, the ROC lost its hold on the mainland and had to retreat to Taiwan. Much of the constitution was never put into practice on the mainland. It did specify that Article 25 The territory of the Republic of China within its existing national boundaries shall not be altered except by a resolution of the National Assembly. The national flag was already changed from the five-color to that of the white sun. It also contains detailed election provisions, which were never carried out, for the provinces and the minority- inhabited areas, including Tibet. Significantly, Article 120 The system of self-government in Tibet shall be safeguarded. This was in recognition of the reality that Tibet under the Dalai Lama government was indeed self-governing, and did not take orders from the ROC central government. The ROC on Taiwan continued to use the 1946 mainland ROC constitution, amended where necessary in a constitutionally prescribed manner. C) _PRC_ The preamble of the PRC constitution [56] states that Taiwan is part of the territory of the PRC. The State is governed under the principle of democratic centralism, which is Marxist emphemism for the organizational mode of the dictatorship of the proletariat through its vanguard the CCP. The constitution specifies that the PRC is a unitary multinational state, and it states that both Han chauvinism and local national chauvinism must be opposed. All nationalities are equal. The constitution specifically prohibits secession, Article 4 [Nationalities, Minorities, Regions, Languages] (1) All nationalities in the People's Republic of China are equal. The state protects the lawful rights and interests of the minority nationalities and upholds and develops the relationship of equality, unity, and mutual assistance among all of China's nationalities. Discrimination against and oppression of any nationality are prohibited; any acts that undermine the unity of the nationalities or instigate their secession are prohibited. Areas inhabited by minorities are classed as autonomous areas. Regions which practise the capitalist system are SAR. In connection with the controversy in Hong Kong regarding interpretation of the Basic Law, the constitution provides that the NPC interprets the constitution and statutes. Deputies to the NPC are elected by the deputies of the next lower (provincial) people's congress, who are in turn elected by deputies of the next lower (county) people's congress, who are then directly elected by the people. Those direct elections by the populace are generally neither open nor fair. Autonomous areas have some autonomous discretionary powers to be exercised in light of the local situation. The administrative head shall be a citizen of that particular (minority) nationality. Thus, the governor of Tibet must be a Tibetan; however this is actually not particularly meaningful: under the Communist system, the Party outranks the government, and the CCP secretary of Tibet outranks the governor. The CCP secretary of Tibet does _not have to be Tibetan. D) _Federal Constitution_ [57] Nineteen pro-democracy Chinese from the PRC, Taiwan and Hong Kong met in 1993 in Honolulu to draft a democratic federal constitution for a future China. One Tibetan and one Mongol participated. The constitution is said to be a federal constitution with confederation characteristics. Han-inhabited provinces are traditionally tightly bound to the central government, while certain outlying areas were traditionally loosely bound, exercising a high degree of autonomy. In this constitution, the traditional provinces are autonomous provinces, while the loosely bound areas are autonomous states. The latter includes Tibet and Taiwan. Hong Kong and Macau are special regions. Article 37 pertains to Hong Kong and basically codifies the present special status into the constitution. Article 30 is desinged to meet the needs of Hong Kong, which may amend the restrictive features under its present Basic Law. Article 38 provides for a separate military for Taiwan, Article 38: [...] The Autonomous State of Taiwan has the right to maintain armed forces and the right to refuse a federal military presence. and it is probably unique in the world, in that one single state has two separate armed forces. Article 39 is a special provision for Tibet, Article 39: [...] The position of the Autonomous State of Tibet will be reviewed 25 years after this Constitution is promulgated. The review will be in the form of a referendum by the citizens in the state and not subject to Article 36 of this Constitution. and it specifically provides for a referendum in Tibet as to whether it wishes to stay in the Federal Republic, twenty-five years after its formation. I was assigned the task of drafting the provisions of federal-state relations prior to the meeting. My original draft stated that any state may call for a secession referendum by a two-thirds vote of its state legislature, and the referendum must be approved by more than three quarters (75%) of all eligible voters in a state. At the conference the majority replaced this requirement with two thirds of the actual votes, and more than one-half of all eligible voters must have participated in the vote. This means that 2/3 x 1/2 = 1/3 of all voters must approve, but the conference added the requirement of approval of the Federal legislature. Six months after the conference, several participants met to prepare the final draft, and the secession referendum article was drastically altered. As it now appears in art. 39, it applies solely to Tibet, only once at the twenty-fifth anniversary of the Federation, and it is only a "review" and it is not totally clear that the result is binding on the Federation. I think that requiring the approval of the rest of the Federation will never work - they will probably not approve. I would rather have certainty arising from the text of the constitution, something like my original, which requires a very high percentage of yes votes in the seceding state, but once achieved, no need of approval from the rest of the Federation. My motivation is to provide a safety escape for disaffected states, to show them that there is a legal way for them to secede. I am in favor of a legal mechanism that is a very high hurdle, but if met, unequivocally allows for secession. I would analogize a Federation to marriage: those unhappy in a marriage should be able to get a divorce legally, rather than having to resort to violence. Providing a safety exit does not necessarily encourage secession, just as sitting in a theater with a fire exit feels safer. Rather it shows that the Federation is governed by humane, reasonable principles, and that very fact should convince some fence-sitters that it is worthwhile to stay in the Federation. In any case, this constitution is to a large extent an academic exercise. There is no doubt that if the future China were to follow a federal model like this one, there will be thorough discussion and debate on this very issue at the constitutional convention before a decision is made. V. _Proposed factors to assess whether secession is justifiable_: [58] A) _secession receives overwhelming support by the inhabitants_. Secession should never be lightly taken. To be legitimate, there must be an democratic vote preceded by open, thorough discussion and debate without coercion. Those who oppose secession have human rights as well, and to express legitimate popular will, the vote must be overwhelming. In the previous section on the federal constitution of China, I outlined one possible criterion, that any state may call for a secession referendum by a two-thirds vote of its state legislature, and the referendum must be approved by more than three quarters of all eligible voters in a state. That is surely only one of the possibilities. The Canadian Supreme Court opinion stated that the meaning of a "clear majority" for secession is a political, non-justiciable question. This is necessarily so in the Canadian situation, where there is no textual support for what "clear majority" is, but in the situation of writing a new constitution, it may be preferable to incorporate that definition in the text. B) _secession is justified by unrelenting oppression_. Existing international law already provides that _discriminatory oppression_ on the basis of "race, creed, or colour" is justification for secession. Ethnic Indians in Fiji are officially discriminated against on the basis of race, but there seems to be few overt egregious acts taken against them, and their case probably does not rise to the level of unrelenting oppression. Ethnic Chinese in Indonesia under Suharto were also officially discriminated against, to the extent that the Chinese language was prohibited, but there were frequent government- encouraged anti-Chinese riots, pillage, murder and rapes, and the case of the Chinese in Indonesia would clearly qualify as unrelenting discriminatory oppression. But oppression is oppression, and _the pain is the same_ whether the oppression is based on race, or it is meted out to everyone on a non-discriminatory basis. _Existing international does not recognize non-discriminatory oppression as a justification for secession, and I urge that it should be._ The PRC oppressed its citizens egregiously prior to 1976; since 1976 oppression eased significantly but is still very much present. Most Han Chinese from the PRC say that governmental oppression is race-neutral, while Tibetans say they receive far harsher oppression, but no one except the government itself ever denies that severe oppression exists even today. [59] The position of ROC/Taiwan is precisely that temporary separation is justified so long as the PRC makes no progress towards a democratic form of government. It was utterly inconceivable that the U.S. would recognize East Germany as the sole government of One Germany, implicitly acknowledging that West Germany should give up its existence and be absorbed by East Germany. Yet it is precisely the position of the U.S. today on Taiwan, and clearly the U.S. takes such a position merely because the PRC is immensely larger and more powerful than Taiwan. It must be said however that democracy is not a cure-all for problems of secession. Canada is surely democratic and citizens enjoy equal rights, and yet it still has a secession problem because of ethnic and cultural differences, even though Quebec secession is not justified under international law. In a democratic China without oppression, Tibetans would have no justification for secession under existing international law. However, even if Tibetans in the PRC today are not singled out for oppression, they should nevertheless be justified in seeking separation today, because the state oppresses all its citizens, of whatever race, creed or colour, in an all-inclusive, non-discriminatory fashion. Confucius must be the ultimate authority in Chinese affairs, and he says, "when the Right Way is not adopted [by the State], I must take a raft and drift away on the open ocean." [60] C) _the territory is geographically compact and relatively homogeneous in population_. Certain technicalities govern whether a seceded state is a viable entity. Blacks in the U.S. hardly ever talk about secession, as they are widely dispersed, never forming an overwhelming majority in any significant large area. Quebec is geographically compact, but there is 10-20% nonfrancophone population. It tooks steps to encourage them to leave the province, and some of those measures (requiring French language proficiencies and French language commercial signs _e.g._) probably violate international norms of human rights [61]. Taiwan and Hong Kong are both geographically compact and homogeneous in population. Tibet as presently delineated is geographically compact and homogeneous in population, as permanent non-Tibetan population is about 5-10%. Some Tibetan nationalists talk about the formation of an independent Greater Tibet, which is twice as large, and that would include large numbers of non-Tibetans, who certainly have their human rights as well. D) _secession can be done in a peaceful manner, resulting in minimal harm to the state from which it secedes_. [62] It is always preferable to avoid bloodshed. Under international law, if peace is breached within a state (as in Yugoslavia), the matter properly becomes the concern of the international community through the Security Council.
That interpretation of international law is vehemently opposed by the PRC, who insistently reserved its right to use force to subjugate Taiwan as its domestic matter that brooks no foreign interference. In the other three divided countries in the world, Germany, Korea, and Vietnam, any move by one part of forcibly take over the other was, or would be (for Germany) cause for large scale foreign intervention. No foreign state took any physical action when Russia used force to re-incorporate Chechnya, but then no state recognized Chechnya, while some thirty states in the world do recognize the ROC. The PRC contends that China is different from Germany, Korea, and Vietnam, because the division arose purely from a civil war, whereas foreign intervention forcibly _created the division in the three latter instances. It is difficult to evaluate _why_ that is a relevant factor. It was the PRC (by virtue of the successful communist rebellion) that seceded from the ROC in 1949, and the seceded state now vows to prevent the parent state from seceding. There is no hope for Tibet to secede, peacefully or otherwise, from the PRC. The PRC would not negotiate, and it will be able to put down any rebellion with overwhelming force. The only hope for Tibetans is for democracy to emerge in China, and then it may be ready to approach the matter in a civilised manner. Does the separation of ROC and PRC irreparably harm China? The obvious answer is no, as the separation was already in effect for fifty-one years. Does the separation of Tibet harm China? Tibet is a large territory, about one eighth of the PRC, even though it is sparsely populated. Does the secession of Quebec harm Canada? It would leave eastern Canada disconnected from the rest of the country, but it may not be serious harm. Nevertheless many people speculate that the truncated Canada would give up and join the U.S. VI. _Prospects of secession or autonomy_ A) _Tibet_ As discussed in the previous section, there is no realistic hope for Tibet to secede under the current circumstances. Under the hypothetical federal constitution, they would enjoy equal rights free from oppression for a twenty-five year trial period. It is impossible to tell whether the scheduled referendum would ratify their autonomous state status in the Federation or opt for separation. There are allegations of intractable inter-ethnic hatred, but since Tibet is so isolated, it is difficult to ascertain the true situation. It may be significant that the Dalai Lama spoke favorably of the Federal constitution. [63] If he supports the federal arrangement, it is likely that the referendum will ratify the autonomous state status for Tibet. That is very speculative, and in any case it is far in the future. Even if at some future date Tibet agrees to be part of a federal Chinese state with all-inclusive, non-discriminatory democracy for all citizens, the Tibetans still retain a separate right [64] under international law of self-determination and self-governance for indigenous peoples. This claim would parallel that of the native Hawaiians, even though the state of Hawaii enjoys all-inclusive, non-discriminatory democracy already at this time. B) _Taiwan_ It would be a great tragedy for the cause of democracy and human rights of the entire world if the PRC were to succeed in subjugating Taiwan by force. To its credit, the PRC does offer one-country two-systems, and does not propose to export its oppressive political system to Taiwan, so that Taiwan people should not lose any of their presently held rights after reunification even under the PRC scheme. Still, it should be up to the Taiwan people to decide whether to accept that arrangement, without being subjected to threats of violence, and so far the PRC offer of one-country two-systems receives little popular support in Taiwan. The PRC claims that everything can be negotiated, but it rejects all other forms of solution, whether federation or confederation, as unacceptable. It is interesting that the one-country two-systems solution favored by the PRC contradicts logically the One China Principle that the PRC also insists upon. The first question presented is: is the status quo already "one-country two-systems"? Clearly, the answer can only be "no", or else the issue has already been resolved. One-country two-systems consists of two prongs: thus, either "two-systems" is absent, or "one-country" is absent. Clearly, the PRC and the ROC operate distinct, i.e. two systems. Therefore, "one-country" must be absent. _Q.E.D. More standard arguments have been made that Taiwan is a state under international law. [65] It is most likely that Taiwan will accept the Federal constitution. During the election campaign, Lien Chan, one of the presidential candidates of Taiwan specifically endorsed a Confederation between the ROC and the PRC. Chen Shui-bian, the President-elect, also stated that a loose form of association, [66] such as confederation, between the ROC and the PRC is acceptable. However, the PRC rejected Confederation as in effect recognizing two separate states. The Federal constitution received a large amount of input from participants from Taiwan, who probably ensured that the concerns of the Taiwan people were fully addressed in the constitution. C) _Hong Kong_ An overwhelming majority in Hong Kong supports being part of China, under the one-country two-systems concept. The dispute has to do with accelerating democracy, safeguarding human rights, and preserving the rule of law in Hong Kong. The task is made more difficult because the central government of the PRC is lukewarm or hostile on all of these goals, and people who wish to curry favors with the central government thus act as surrogates to express opposition to these goals. There is nevertheless some genuine disagreement among Hong Kong people about these issues, without taking into account the attitude of the central government. At least so far, the central government has not interfered with a heavy hand in these disputes, and there is still open and vigorous debates allowed on these issues. A more democratic China would lead to a much happier Hong Kong. More than one million people, one fifth of the entire population of Hong Kong, went on the streets to demonstrate in support of the democracy movement in China in 1989, which was however subsequently brutally crushed in the Tiananmen Square Massacre. Ultimately, democracy, human rights, and rule of law would be immensely more secure in tiny Hong Kong if such values also take root in China itself. The adoption of something like the Federal constitution would be sure sign that such a happy day has arrived. .pa _Endnotes_ 1. There are many occurrences in the world, where a minority in a state may wish to undertake self-determination through either secession or autonomy: Tibet in China, Quebec in Canada, Kashmir in India, Hawaii in the U.S., and numerous others. In many instances, secession occurred: the dissolution of the USSR, the breakup of Czechoslovakia, the dismemberment of Yugoslavia, the independence of East Timor. Certain places already have some kind of autonomy, Tibet, Hong Kong in China, Indian Tribes in the U.S., that may or may not be satisfactory. 2. Right to decolonization gradually became part of international law during the 1950-60s, when colonies of Western powers gained their independence. Most countries with contiguous territories inhabited by minorities deny that those are colonies entitled to self-determination under decolonization. 3. Since the dissolution of the USSR removed the best known instance of a state constitution guaranteeing right of secession, I know of no other state today that has such an enshrined right. 4. None of these criteria have yet become settled international law: they remain recommendations to policy makers of states. Having sufficiently many states favor the self-determination solution in a given situation creates pressure on the parties involved to seek such a solution. In some cases, other states simply recognize the seceding states as independent, creating a _fait accompli_, as happened in the case of the Yugoslav regions. 5. See, _e.g._, _Science: Social Sciences: Languages and Linguistics: Natural Languages: Sino-Tibetan Languages_ (visited Apr. 21, 2000) <http://dmoz.org/Science/Social_sciences/Language_and_Linguistics/Natural- Languages/Sino-Tibetan_Languages/>. Inevitably there are speculations that the ethnic groups within a language family originated as one single group located in a compact area. There are linguistically based speculations that the Indo-European speakers all originated in the Danube-Black-Sea region, and likewise there are speculations that all Sino-Tibetans, which include Chinese, Tibetans and Burmese, originated around the Qinghai Lake area. 6. Zhang Zhirong, _Dangdai Xizang Wenti Yanjiu_ (Research on the Contemporary Tibet Problem), 1-3 (1994). 7. During that early period the Tibetan state expanded northwards into Central Asia; see, _e.g._, Christopher I. Beckwith, _The Tibetan Empire in Central Asia (1987). 8. The peace treaty is not available from any website, and is reproduced here: THE 822 PEACE TREATY BETWEEN TIBET AND CHINA The following translation from the Tibetan inscription on a stone pillar in front of the Jokhang is from Charles Bell. --------------------------------------------------------- The Sovereign of Tibet, the Divine King of Miracles, and the great King of China, Hwang Te, the Nephew and the Maternal Uncle, have agreed to unite their kingdoms... Tibet and China shall guard the land and frontier, of which they have hitherto held possession. All to the east of the frontier is the country of Great China. All to the west is certainly the country of Great Tibet. Henceforth there shall be no fighting as between enemies, and neither side will carry war into the other's country. Should there be any suspected person, he can be arrested, questioned, and sent back. Thus the great Agreement has been made for uniting the kingdoms, and the Nephew and Uncle have become happy. In gratitude for this happiness it is necessary that travellers with good messages should go backwards and forwards. The messengers from both sides will also travel by the old road as before. According to the former custom ponies shall be exchanged at Chang-kun-yok, on the frontier between Tibet and China. At Che-shung-shek Chinese territory is met; below this China will show respect. At Tsen-she-hwan Tibetan territory is met; above this Tibet will show respect. The Nephew and Uncle, having become intimate, will respect each other according to custom... This Agreement, that the Tibetans shall be happy in Tibet and the Chinese happy in China and the great kingdoms united, shall never be changed. The Three Precious Ones, the Exalted Ones, the Sun and Moon, the Planets and Stars have been invoked to bear witness. Solemn words were also uttered. Animals were sacrificed and oaths taken, and the Agreement was made. Is this Agreement held to be binding? If this Agreement is violated, whether Tibet or China violates it first, that one has committed the sin. Whatever revenge is taken in retaliation shall not be considered a breach of the Agreement. In this way, the Kings and Ministers of Tibet and China took oath and wrote this inscription of the Agreement in detail. The two great Kings affixed their seals. The Ministers, considered as holding the Agreement, wrote with their hands. This Agreement shall be observed by both sides. 9. For the sake of convenience, "the Chinese" refer to those who favor the PRC official position, while "the Tibetans" refer to those who favor the official position of the Tibetan Government in Exile. There are Chinese people who support an independent Tibet, and there are Tibetans who support union in China. 10. Only the English translation of the Tibetan original is available; I have not been able to locate the entire text of the treaty in Chinese, only isolated phrases. 11. Lee Feigon, _Demystifying Tibet_, 58 (1996). 12. _Id_., at 61. 13. Information Office of the State Council of the PRC, _Tibet - Its Ownership and Human Rights Situation (1992), generally cited as the "White Paper on Tibet". Many of the historical facts alluded to here are also mentioned in this White Paper. Events in ancient history or in modern times before 1949 are independently verifiable in Chinese dynastic histories, or the records of the ROC, and it is unnecessary to rely on the PRC White Paper to authenticate these facts. (As an imperfect analogy, if the records of the Kaiser's Germany and of the Weimar Republic conform to the statements of the Third Reich on the matter of Austria, then these records should state a _prima facie case.) The Tibetan account of the same historical events is quite different. Reproduced here is portion of the _Frequently Asked Questions of the newsgroup talk.politics.tibet_, 1206 An assembly names Genghis Khan first ruler of a unified Mongol nation 1247 Sakya Pandita submits to Godan Khan; beginning of the first priest/ patron relationship between a Tibetan lama and a Mongol khan 1261 Tibet is reunited with Sakya Pandita, Grand Lama of Sakya, as king 1279 Final defeat of Song by Mongols; Mongol conquest of China complete 1350 Changchub Gyaltsen defeats Sakya and founds the secular Sitya dynasty 1368 China regains its independence from the Mongols under Ming dynasty 1409 Ganden, 1st Gelugpa monastery, built by monastic reformer Tsongkhapa 1435-81 In prolonged warfare, Karmapa supporters gain control of Sitya court 1578 Gelugpa leader gets the title of Dalai ("Ocean") from Altan Khan 1635 Sitya dynasty is overthrown by the ruler of Tibet's Tsang province 1640 Gushri Khan, leader of Khoshut Mongols, invades and conquers Tibet 1642 Gushri Khan enthrones the 5th Dalai Lama as temporal ruler of Tibet 1644 Manchu overthrow Ming, conquer China, and establish the Qing dynasty 1653 "Great Fifth" Dalai Lama meets Qing Emperor Shunzhi near Beijing 1682 Fifth Dalai Lama dies; regent conceals death for the next 14 years 1716-21 Italian Jesuit priest Ippolito Desideri studies and teaches in Lhasa 1717 Dzungar Mongols invade Tibet and sack Lhasa; 5th DL's tomb looted 1720 Dzungars driven out; Qing forces install Kesang Gyatso as the 7th DL 1721 The position of Amban is created by a 13-point Qing decree on Tibet 1724 A Chinese territorial government is created for Qinghai (Amdo) 1750 Ambans murder regent; rioters kill Ambans; Qing troops sent to Tibet 1792 Qing troops enter Tibet to drive out Gorkha (Nepalese) invaders 29-point Qing decree prescribes "golden urn" lottery for picking DL and PL, bans visits by non- Chinese, and increases Ambans' powers 1854-56 Nepal defeats Tibet; peace treaty requires that Tibet pay tribute 1904 British troops under Colonel Younghusband enter Tibet & occupy Lhasa 1907 China's suzerainty over Tibet is recognized in Anglo- Russian treaty 1910-12 Qing troops occupy Tibet, shoot at unarmed crowds on entering Lhasa 1912 Last Qing emperor abdicates; Republic of China claims Mongolia,Tibet 1913 13th Dalai Lama proclaims Tibet a "religious and independent nation" Mongolia and Tibet recognize each other in a treaty signed in Urga 14. Feigon, _supra_ note 11, at 63-64. 15. Ya Hanzhang, _Dalai Lama Zhuan_ (Biography of the Dalai Lamas), 29-39 (1984). See also the _Frequently Asked Questions of the newsgroup talk.politics.tibet_ for the Tibetan account. 16. Melvyn Goldstein, _A History of Modern Tibet_, 2, note 3, 50, note 31. 17. Zhang, _supra note 6, at 30, and from the Tibetan point of view, Warren W. Smith, _Tibetan Nation_, 161-164 (1996). 18. Goldstein, _supra_ note 16, 737-813. 19. A. Tom Grunfeld, _The Making of Modern Tibet_, 131-150 (1996). 20. The imperial Chinese concept of _fan-bu (subject principality) is explained in Zhang, _supra note 6, at 12-15. See the opposing view in _Frequently Asked Questions of the newsgroup talk.politics.tibet_, which states that the Chinese imperial government classified Tibet as a tribute state, and then later unilaterally reclassified it as _fan-bu_. 21. Zhang, _supra note 6, at 12-15 (1994), "We rule over Our entire realm. All states that accept Us as the sovereign are our territories. Since Vietnam is a subject, every inch of its territory is Our territory. ... As to this forty _li of land, if it is in Yunnan, then it is Our interior territory; if it is in Vietnam, then it is Our external subject territory; there is not the slightest difference." 22. An emissary named Liu Manqing, whose father is Han Chinese and mother Tibetan, was sent by the ROC government to meet with the Dalai Lama, and in her account, the Dalai Lama also said, regarding certain territorial disputes with another Chinese province, "since it is all Chinese territory, there is no need to distinguish between you and me." Liu Manqing, _A Mission to Xikang and Tibet_, _cited in PRC State Council, _White Paper on Tibet_, at 12 (1992). The Tibetans say that no such conversation took place. 23. The Tibetans say that there was merely a priest-patron (_Cho- Yon in Tibetan) relationship between the Dalai Lama and the Emperor of China. Feigon, _supra note 11, 77-80, Smith, _supra note 17, 93-100. 24. 1933 Montevideo Convention on Rights and Duties of States, art. I. 25. The United Nations did not recognize the Unilateral Declaration of Independence by Rhodesia: S.C. Res. 216, 20 U.N. SCOR, Res. and Dec. at 8 (1965), S.C. Res. 217, 20 U.N. SCOR, Res. and Dec. at 8 (1965). 26. _100 Years Since the Treaty of Shimonoseki_, (visited Apr. 22, 2000) <http://www.taiwandc.org/hst-1895.htm> 27. _1943 Cairo Conference Declaration, November, 1943_, (visited Apr. 21, 2000) <http://www.nelson.com/nelson/school/discovery/cantext/wwii/1943cair.htm>. 28. Above are well-known undisputed historical facts. 29. President Lee Teng-hui spoke to German radio Deutsche Welle in July 1999. 30. PRC Foreign Ministry, White Paper _The One-China Principle and the Question of Taiwan (visited Apr. 21, 2000) <http://www.fmprc.gov.cn/english/dhtml/readsubject.asp?pkey=20000 222170511>. 31. Diaoyu Lang, _Oppose Civil War_, Chinese Community Forum, issue 95-36 (Sept. 1995) (visited Apr. 21, 2000) <http://www.china-net.org/CCF95/ccf9536-1.htm>. 32. There is a site "Song Emperor Platform" immediately adjacent to the old international airport in Hong Kong. 33. In September 1982, Prime Minister Margaret Thatcher visited Beijing and proposed a continuation of British rule. The PRC rejected the proposal, but both sides agreed to open talks on the disposition of Hong Kong in light of the 1997 lease problem. 34. _Hong Kong - Constitution (visited Apr. 22, 2000) <http://www.uni-wuerzburg.de/law/hk00000_.html>. 35. The definitive account of these disputes is probably provided by the person who knew all, Chris Patten, _East and West: The Last Governor of Hong Kong on Power, Freedom and the Future (1998). 36. Maria Estanislao, _Right of Final Adjudication in Hong Kong: Establishing Procedures of Constitutional Interpretation_, APL&PJ (visited Feb. 18, 2000) <http://www.hawaii.edu/aplpj/1/10.html>, discusses the relations of judicial review, adjudication, and interpretation under the different traditons of common versus civil law. 37. Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514, U.N. GAOR, 15th Sess., Supp. No. 16, at 66, U.N. Doc. A/4684 (1960), _cited in Jon M. Van Dyke, Carmen Di Amore-Siah, Gerald W. Berkley-Coats, _Self- Determination for Nonself-governing Peoples and for Indigenous Peoples: The Cases of Guam and Hawai`i_, 18 U. Haw. L. Rev. 623 (1996). 38. Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance withe the Charter of the United Nations, G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 28, at 121, U.N. Doc. 1/8028 (1970), _cited in Van Dyke, _supra note 37, at 630. _See also_, Oscar Schachter, _United Nations Law_, 88 A.J.I.L. 1 (1994). 39. On October 28, 1991, President George Bush signed a State Department Authorization Act, which contains That it is the sense of Congress that Tibet, including those areas incorporated into the Chinese provinces of Sichuan, Yunnan, Gansu, and Qinghai, is an occupied country under established principles of international law whose true representatives are the Dalai Lama and the Tibetan Government in Exile as recognized by the Tibetan people. The White House argued this was only a "sense of Congress" and not binding on U.S. government nor official U.S. policy. _Cited in_ Grunfeld, _supra_ note 19, at 238. 40. Zhang, _supra_ note 6, at 174-180. 41. _See_ PRC White Paper on Taiwan, _supra_ note 30. 42. Again, "Taiwan people" refer to those who support the official position of the ROC. There are people on Taiwan who support unification with mainland. 43. The first indirect election of the legislature was held in 1986, and the first direct election by the general populace, only in 1991. 44. See section on the constitution of the PRC as to how elections are held to the NPC. 45. _Constitution Act 1982 (visited Feb. 6, 2000) <http://www.solon.org/Constitutions/Canada/English/ca_1982.html>, _Canada Index (visited Feb. 6, 2000) <http://www.uni-wuerzburg.de/law/ca_indx.html>. 46. Charles Whites, _Reference Re Secession of Quebec: Secession by Quebec is a Nearly Impossible Task_, 19 N.Y.L. Sch. J. Int'l & Comp. L. 323 (1999). 47. Elizabeth L. Wiltanger, _Sound the Trumpets! Quebec is Shouting, "Victory!" Despite the Canadian Supreme Court's Denial of Unilateral Secession_, 17 Dick. J. Int'l L. 505 (1999) 48. _Constitution (Fundamental Law) of the Union of Soviet Socialist Republics_ (visited Feb. 6, 2000) <http://www.departments.bucknell.edu/russian/const/1977toc.html>. 49. _The Economist_, 57 (Dec. 7, 1991). 50. _The Constitution of the Russian Federation_ (visited Feb. 6, 2000) <http://www.fipc.ru/fipc/constit/>. 51. Peter D. Dipaola, _A Noble Sacrifice? Jus ad Bellum and the International Community's Gamble in Chechnya_, 4 Ind. J. Global Leg. Stud. 435 (1997). 52. _Germany - Constitution_ (visited Feb. 6, 2000) <http://www.uni-wuerzburg.de/law/gm00000_.html>. 53. _The Constitution of India_ (visited Feb. 6, 2000) <http://alfa.nic.in/const/a1.html>. 54. Smith, _supra_ note 17, 183-184. 55. _Taiwan - Constitution (Adopted on: 25 Dec. 1946)_ (visited Feb. 6, 2000) <http://www.uni-wuerzburg.de/law/tw00000_.html>, <http://www.uni-wuerzburg.de/law/tw01000_.html>. 56. _China - Constitution (Adopted on: 4 Dec. 1982)_ (visited Feb. 6, 2000) <http://www.uni-wuerzburg.de/law/ch00000_.html>. 57. The Constitution of the Federal Republic of China is not available from any website. (Very interestingly, the spy section of the British Administration in Hong Kong translated the document into English, and we the drafters got one paper copy, which is why it is not widely available. We the drafters knew that the Dalai Lama has a copy.) The relevant sections are reproduced here: _Constitution of the Federal Republic of China_ [...] Chapter Three: Federal Structure Article 28: The Federal Republic of China is made up of: The Autonomous State of Inner Mongolia, the Autonomous State of Taiwan, the Autonomous State of Tibet, the Autonomous State of Xinjiang, the Autonomous State of Ningxia and the Autonomous State of Guangxi; The Autonomous Province of Shanxi, the Autonomous Province of Shandong, the Autonomous Province of Sichuan, the Autonomous Province of Gansu, the Autonomous Province of Jiangxi, the Autonomous Province of Jiangsu, the Autonomous Province of Jilin, the Autonomous Province of Anhui, the Autonomous Province of Hubei, the Autonomous Province of Hunan, the Autonomous Province of Qinghai, the Autonomous Province of Shan9xi, the Autonomous Province of Hainan, the Autonomous Province of Zhejiang, the Autonomous Province of Hubei, the Autonomous Province of Hunan, the Autonomous Province of Guizhou, the Autonomous Province of Yunnan, the Autonomous Province of Heilongjiang, the Autonomous Province of FuJian, the Autonomous Province of Guangdong and the Autonomous Province of Liaoning; The Autonomous Municipality of Shanghai, the Autonomous Municipality of Tianjin and the Autonomous Municipality of beijing; and The Special Region of Hong Kong and the Special region of Macau. Article 29: Any power that is not constitutionally vested in the Federal Government is exercised by the individual Autonomous States, Autonomous Provinces, Autonomous Municipalities and Special Regions and the entire citizenry. Article 30: Each Autonomous State makes its own constitution. Each Autonomous Province, Autonomous Municipality or Special Region makes its own Basic Law. A State Constitution or Basic Law may not conflict with the Constitution of the Federal Republic of China or violate the lawful rights of another State, Province, Municipality or Special Region. [...] Article 33: Each Autonomous State has the right, in the name of an Autonomous State of China, to sign non-military agreements with foreign countries, and the right to make its own decisions about joining international organi- zations and setting up representative offices in foreign countries. Article 34: The Federal Government may send representatives to, and set up repre- sentative offices in, the individual States, Provinces, Municipalities and Regions. Article 35: No military alliance may be formed, or military agreement signed, among the States, Provinces, Municipalities and Regions. Article 36: The Federal House must approve by a three-fourths majority vote before any new State, Province, Municipality or region can be created. Before any change is made to any State, Province, Municipality or Region, the legislature of the particular State, Province, Municipality or Region must give its approval, and the Federal House must approve by a two-thirds majority yote. Article 37: Before year 2050, the Special Region of Hong Kong and the Special Region of Macau will have the authority to issue regional currencies and regional passports, travel documents and visas; set up regional courts of final appeal; regulate regional postal service and telecommunications; protect copy rights, patents and other kinds of intellectual property; and, in the name of a Special Region of the Federal Republic of China, sign non-political and non-military agreements with foreign countries, take part in non-political and non-military international organizations, and set up economic and trade offices in foreign countries. The Special Region of Hong Kong and the Special Region of Macau are financially independent and not required to pay federal tax. The Special Region and Hong Kong and the Special Region of Macau are authorized by the Federal House to regulate aviation and ocean shipping. In year 2050, the Federal House will review the position of the Special Region of Hong Kong and the Special Region of Macau under the terms of the second clause of Article 36. Article 38: The Autonomous State of Taiwan has the authority to issue its state cur- rency, passports, travel documents and visas; set up its state court of final appeal; regulate space flights, aviation, ocean shipping, postal service and telecommunications; and protect copy rights, patents, trade marks and intellectual property. The Autonomous State of Taiwan is financially independent and not required to pay federal tax The Autonomous State of Taiwan has the right to maintain armed forces and the right to refuse a federal military presence. Article 39: The Autonomous State of Tibet is a national nature conservation area, where the testing of nuclear, chemical and biological weapons and the stor- age of nuclear wastes are prohibited. The Autonomous State of Tibet is financially independent and not required to pay federal tax. The Autonomous State of Tibet has the right to set up its state court of final appeal. The position of the Autonomous State of Tibet will be reviewed 25 years after this Constitution is promulgated. The review will be in the form of a referendum by the citizens in the state and not subject to Article 36 of this Constitution. 58. These factors are modified from the proposals of Ved P. Nanda, _Self-Determination Under International Law: Validity of Claims to Secede_, 13 Case W. Res. J. Int'l L. 257 (1981). The convenor of the Federal Constitution conference, Yan Jiaqi, favors the inclusion of the factor of "causing minimal harm". 59. Random latest example: practitioners of Falun Gong prosecuted and tortured. Current news. 60. That saying was not particularly well known. However, during the 1970s, the CCP persistently quoted that "reactionary statement" in its propaganda in order to attack Confucius, and as a result, that saying became very well-known. 61. The International Covenant on Civil and Political Rights, part III, art. 27 states: In those States in which ethnic, religious or linguistic minorities exist, persons belong to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. 62. Frederic L. Kirgis, _Comment: The Degrees of Self- Determination in the United Nations Era_, 88 A.J.I.L. 304 (1994), interestingly states a thesis similar to that of this article: it evaluates secession claims by balancing representativeness against destabilization, The right of self-determination may be seen as a variable right, depending on a combination of factors. The two most important of these seem to be the degree of destabilization in any given claim, taking into account all the circumstances surrounding it, and the degree to which the responding government represents the people belonging to the territory. If a government is quite unrepresentative, the international community may recognize even a seriously destabilizing self-determination claim as legitimate. Valerie Epps, _The New Dynamics of Self-Determination_, 3 ILSA J Int'l & Comp L 433 (1997) seems to take a similar point of view, but places more emphasis on the "last resort" nature of secession: I reiterate that claims to secession must only be considered as a last resort when it is clear that ethnic groups cannot live together and it is equally clear that the group claiming secession makes a compelling case because of its perceived deprivation of human rights within the larger community. The claim that it is deprived of its right to participate in all value processes, power, wealth, and resources, respect and rectitude, enlightenment and skill, and affection and well-being, should establish its right to secede. The proper context should also include the potential impact of secession upon the parent state and other states, and security and stability in an international or regional context. 63. There was contemporary news report that Dalai Lama favors the federal constitution, which fact is confirmed by the website of the Tibetan Government in Exile containing laudatory comments on the federal constitution. _Draft Constitution for a Federal China - Gives Reference to Tibet (visited Mar. 10, 2000) <http://www.tibet.com/China.drchcon.html>. 64. See, _e.g._, Van Dyke, _supra_ note 37, at 623-624. 65. See, _e.g._, Angeline G. Chen, _Taiwan's International Personality: Crossing the River by Feeling the Stones_, 20 Loy. L.A. Int'l & Comp. L.J. 223 (1998). 66. _Taiwan leader: Taiwan-China confederation possible_, Star- Bulletin, Apr. 21, 2000, at 1.



The Constitution of the Federal Republic of China (proposed draft) This Constitution is made so as to end the politics of dictatorship in the history of China, to change the system of centralization of power, to establish the rule of law, to safeguard the freedoms and rights of citi- zens, to improve the well-being of all, and to maintain peace and tranquil- lity for all nationalities and in all areas. Chapter One: General Principles Article 1: The Federal Republic of China is a free and democratic federal republic with the rule of law. Article 2: The sovereignty of the Federal Republic of China belongs to all the peo- ple. Article 3: People with the nationality of the Federal Republic of China are citizens of the Federal Republic of China. Article 4: The Federal Republic of China is composed of Autonomous States, Autonomous Provinces, Autonomous Cities and Special Regions ( herein- under, states, provinces, cities and regions for short). Article 5: All nationalities of the Federal Republic of China have the right to keep and develop their cultures, religions and languages. Chapter Two: Citizens' Rights and Obligations Article 6: The citizens of the Federal Republic of China are equal before the law. They are not unequal because of difference in sex, in origin, in language, in nationality, in religion, in wealth, in party affiliation or in political per- suasion. Article 7: Citizens' personal freedom is inviolable. See below for the handling of the arrest of offenders against existing law. Nor may anybody be arrested or detained by the judiciary or the public security authority except in due process of law. Nobody may be tried or sentenced by the court except in due process of law. Arrest, detention, trial and sentencing may be resisted and actionable if they do not comply with the provisions of law. Where a citizen is arrested and detained as a crimme suspect, the arresting and detaining authority should tell him, the reason for his arrest and detention; and hand him over to the appropriate court for action within the time limit prescribed by law. He or any other person may apply to the appropriate court for a writ requiring that he be removed from his place of detention and brought before the court within the time limit prescribed by law. The court may not refuse such an application. The detaining author- ity may not refuse to comply, or delay in complying, with the writ. The suspect's personal dignity is inviolable. He has a right to be tried independently and openly by a court of justice and to defend himself therein. He may not be treated or punished in a cruel, inhuman or humiliating manner. He may not be forced to testify against himself. Article 8: The home of a citizen is inviolable. Nobody may force his way into it or search it except in due process of law~ Article 9: A citizen who is not a military person on active duty may not be tried by a military court. Article 10: Citizens are free to choose their places of residence and to change them. Each autonomous State or Special Region may make its own entry and exit regulations as warranted by local circumstances. Article 11: Citizens have the freedom of speech, lecture, writing, publication and operating news media. Article 12: Citizens have the freedom of confidential communication. Article 13: Citizens have the freedoms of assembly, association, procession and demonstration. Article 14: Citizens have the freedoms of organizing political parties and conduction political activities. Political parties must be lawfully registered. Fundings and expenditures of such parties must be declared in accordance with law.. Article 15: Citizens have the freedoms of religion and belief. Article 16: Citizens are free to choose their occupations. Article 17: Citizens have the freedoms of organizing and joining trade unions and going on strike. Article 18: Citizens have the right of lawful access to information. Article 19: Citizens have the right to present petitions, air grievances and to take legal proceeding. Article 20: Citizens upon reaching the age of 18 have the right to vote in elections. Citizens upon reaching the age of 20 have the right to stand for elections. Article 21: Citizens' property rights should be protected. Nobody may be expropriated of his property except for a public cause, except in due process of law and except upon payment of reasonable compensation. Property rights should be exercised in a manner not detrimental to public interests. Article 22: Citizens have the right and the obligation to receive national education. Article 23: Citizens have the obligation to perform military service as required by law. Artcle 24: Citizens have the obligation to pay tax as required by law. Article 25: All other rights and freedoms of a citizen, except where they are detri- mental to peace and order or to public interests, are safeguarded by the Constitution. Article 26: No law should be made to curtail the above-listed freedoms and rights. Exceptions are where they hinder the rights of others; when there is an emergency; and where they must be curtailed in order to maintain peace and order or to promote public interests. Article 27: Any public servant who unlawfully violates a freedom or right of a citizen should not only be punished under law but also incur a criminal or civil liability. The victimized citizen may ask the state to compensate him for the damage that he has suffered. Chapter Three: Federal Structure Article 28: The Federal Republic of China is made up of: The Autonomous State of Inner Mongolia, the Autonomous State of Taiwan, the Autonomous State of Tibet, the Autonomous State of Xinjiang, the Autonomous State of Ningxia and the Autonomous State of Guangxi; The Autonomous Province of Shanxi, the Autonomous Province of Shandong, the Autonomous Province of Sichuan, the Autonomous Province of Gansu, the Autonomous Province of Jiangxi, the Autonomous Province of Jiangsu, the Autonomous Province of Jilin, the Autonomous Province of Anhui, the Autonomous Province of Hubei, the Autonomous Province of Hunan, the Autonomous Province of Qinghai, the Autonomous Province of Shan9xi, the Autonomous Province of Hainan, the Autonomous Province of Zhejiang, the Autonomous Province of Hubei, the Autonomous Province of Hunan, the Autonomous Province of Guizhou, the Autonomous Province of Yunnan, the Autonomous Province of Heilongjiang, the Autonomous Province of FuJian, the Autonomous Province of Guangdong and the Autonomous Province of Liaoning; The Autonomous Municipality of Shanghai, the Autonomous Municipality of Tianjin and the Autonomous Municipality of beijing; and The Special Region of Hong Kong and the Special region of Macau. Article 29: Any power that is not constitutionally vested in the Federal Government is exercised by the individual Autonomous States, Autonomous Provinces, Autonomous Municipalities and Special Regions and the entire citizenry. Article 30: Each Autonomous State makes its own constitution. Each Autonomous Province, Autonomous Municipality or Special Region makes its own Basic Law. A State Constitution or Basic Law may not conflict with the Constitution of the Federal Republic of China or violate the lawful rights of another State, Province, Municipality or Special Region. Article 31: The Federal government makes and enforces laws in the following areas: (1) Foreign policy, the declaration of war and the making of peace. (2) Nationality. (3) National defense and military affairs. (4) Federal budgets and taxes. (5) The Federal legal and judicial system. (6) The election of the National House. (7) The Federal civil service system. (8) The Federal public security and police system. (9) Federal customs and excises and entry/exit controls. (10) The regulation of space flights,aviation, ocean shipping, lnland waterways, national roads and national railways. (11) The establishment of the Federal Central Bank and the issue of the national currency. (12) The regulation of postal service and telecommunications. (13) Standard weights and measures and national statistics. (14) The protection of copy rights, patents, trade marks and intellectual property. (15) The regulation of relationships among the States, Provinces, Municipalities and Regions. Article 32: The individual States, Provinces, Municipalities and Regions make and enforce laws in the following areas: (1) The legal and judicial system. (2) The education system. (3) The selection of members to the Federal House. (4) The regulation of agriculture, forestry, animal husbandry, mining, industry, commerce and services. (5) Budgets and taxes. (6) The land system and nature conservation. (7) The regulation of labour, social welfare and social services. (8) The provision and supervision of medical and health services, sports facilities and recreation facilities. (9) The promotion and protection of science, technology, culture and the arts. (10) The regulation of banks and financial services. (11) The regulation of public utilities and joint operations. (12) The supervision of charities and community services. (13) The registration of religious organizations and social groups. (14) The public security and police system. (15) The civil service system. (16) The system of local autonomy. (17) Other areas that are constitutionally not under the jurisdiction of the Federal Government. Article 33: Each Autonomous State has the right, in the name of an Autonomous State of China, to sign non-military agreements with foreign countries, and the right to make its own decisions about joining international organi- zations and setting up representative offices in foreign countries. Article 34: The Federal Government may send representatives to, and set up repre- sentative offices in, the individual States, Provinces, Municipalities and Regions. Article 35: No military alliance may be formed, or military agreement signed, among the States, Provinces, Municipalities and Regions. Article 36: The Federal House must approve by a three-fourths majority vote before any new State, Province, Municipality or region can be created. Before any change is made to any State, Province, Municipality or Region, the legislature of the particular State, Province, Municipality or Region must give its approval, and the Federal House must approve by a two-thirds majority yote. Article 37: Before year 2050, the Special Region of Hong Kong and the Special Region of Macau will have the authority to issue regional currencies and regional passports, travel documents and visas; set up regional courts of final appeal; regulate regional postal service and telecommunications; protect copy rights, patents and other kinds of intellectual property; and, in the name of a Special Region of the Federal Republic of China, sign non-political and non-military agreements with foreign countries, take part in non-political and non-military international organizations, and set up economic and trade offices in foreign countries. The Special Region of Hong Kong and the Special Region of Macau are financially independent and not required to pay federal tax. The Special Region and Hong Kong and the Special Region of Macau are authorized by the Federal House to regulate aviation and ocean shipping. In year 2050, the Federal House will review the position of the Special Region of Hong Kong and the Special Region of Macau under the terms of the second clause of Article 36. Article 38: The Autonomous State of Taiwan has the authority to issue its state cur- rency, passports, travel documents and visas; set up its state court of final appeal; regulate space flights, aviation, ocean shipping, postal service and telecommunications; and protect copy rights, patents, trade marks and intellectual property. The Autonomous State of Taiwan is financially independent and not required to pay federal tax The Autonomous State of Taiwan has the right to maintain armed forces and the right to refuse a federal military presence. Article 39: The Autonomous State of Tibet is a national nature conservation area, where the testing of nuclear, chemical and biological weapons and the stor- age of nuclear wastes are prohibited. The Autonomous State of Tibet is financially independent and not required to pay federal tax. The Autonomous State of Tibet has the right to set up its state court of final appeal. The position of the Autonomous State of Tibet will be reviewed 25 years after this Constitution is promulgated. The review will be in the form of a referendum by the citizens in the state and not subject to Article 36 of this Constitution. Chapter Four: The Parliament Article 40: The Parliament of the Federal Republic of China is the supreme federal legislative body. The Parliament of the Federal Republic of China is composed of two hous- es: The national House and the Federal House, which jointly exercise the legislative powers. Article 41: The National House has a total of 501 Members, returned from the individ- ual States, Provinces, Municipalities and Regions, each in a number pro- portional to its population, provided that each returns at least one Member. The term of office of a Member of National House is four years. He can be re-elected. The assignment of House seats, the demarcation of elec- toral district boundaries and the methods of election are stipulated by law. Article 42: The Federal House is composed of Members returned from the individual States, Provinces, Municipalities and Regions: four each from the Autonomous States, three each from the Autonomous Provinces and Municipalities and two each from the Special Regions. Each of the States, Provinces, Municipalities and Regions decides for itself how its Representatives to the Federal House are elected. The term of office of Member of Federal HOuse is six years. An election is held every three years to return one half of the Federal House Members~ A citizen of the Federal Republic of China must have reached the age of 30 before he can serve as a Federal House Member. Article 43: Each House has a Speaker and Deputy Speaker, who are elected by its Members from among themselves. The Federal Parliament meets in two sessions each year, convening the sessions itself. The first session begins on the first Monday of March. The second session begins on the first Monday of September. There is a quorum when one half of the Members are present. Article 44: Either House must meet in an extraordinary session if convened by Premier or if requested to meet by not less than one quarter of its Members. Article 45: A member of Federal Parliament is not subject to arrest or detention except if he is an offender against existing law and except with the approval of the House in which he sits. Members of Parliament are not legally liable for what they say or how they vote in parliament. Article 46: The two Houses of Parliament jointly exercise the following powers: (1) Legislative powers under the terms of Article 31 of this Constitution. (2) Reviewing the federal budget and financial report. (3) Ratifying treaties concluded between the Federal Republic and for eign countries; making decisions on war or peace; and making deci sions on general or partial rnobilization. (4) Making decisions on national or local curfew. (5) Making decisions on general amnesty. (6) At the request of the Premier, reviewing any agreement concluded by an Autonomous State or a Special Region with a foreign country, to see if it is contrary tothefederal Constitution. (7) Any other power approved by the Constitution. Article 47: The Federal House by itself exercises the following powers: (1) Approving the establishment of any new State, Province, Municipality or Region and any change in the States, Provinces, Municipalities and Regions under the terms of Article 36. (2) Approving any boundary change among the States, Provinces, Municipalities and Regions. (3) Impeaching the federal Premier, the Vice Premier and any State Councillor, Minister or Judge. (4) Approving the appointment of any federal Judge nominated by the premler. Article 48: When reviewing the federal budget proposal, Parliament may not suggest any increase in spending. The federal budget proposal is first tabled at the National House for approval. It is then reviewed by the Federal House. If the two House fail to agree on an identical approved budget within three months from the tabling of the budget proposal, the budget proposal is returned to the National House then approves the budget proposal by more than half of the Members, the budget proposal becomes the approved budget. A legislative process is completed if both Houses approve an identical version of a legislative bill or resolution. When needed, either House may introduce a legislative bill. The two Houses then appoint representa- tives to form a conference committee. The resolution of the conference committee is then sent back to each House for a floor vote. Article 49: Any bill passed by Parliament is promulgated by the President, who must do so within 10 days from his receipt of it. Article 50: The organization of the National House and that of the Federal House are stipulated by law. Chapter Five: The Presidency Article 51: The President is the head of state. He represents the Federal Republic of China externally. The President of the Federal Republic of China is elected by the Electoral College, which is composed of Members of the two Houses of Parliament States, Provinces, Municipalities and Regions. A presidential candidate must be a citizen born in China and must have reached the age of 40. Presidential elections are called by the Speaker of the National House. A presidential election is held within 60 days before the term of the incum- bent President expires or within 30 days from the time that the presiden- tial office becomes vacant. Each presidential candidate is nominated by one fifth of the Members of the Federal House. The candidate who receives more than half of the votes of the Electoral College wins the election. If no candidate receives more than half of the votes after two ballots, the first tO pass the post at the third ballot is the winner. The President elect must withdraw from his own political party before the inauguration. Article 52: The President's term of office is four years. He may be elected to a second term. The President exercises the following powers under law: (1) Signing and promulgating laws passed by Parliament. (2) Appointing the Premier according to the National House's decision. (3) At the request of the Premier, appointing or dismissing the Vice Premier, any State Councillor or any Minister. (4) Dissolving the National House under the terms of Articles 56 and 59. (5) Signing or abrogating treaties with foreign countries according to the decision of Parliament. (6) Declaring war or making peace according to the decision of Parliament. (7) Receiving foreign emissaries and, at the request of the Premier, sending or recalling envoys accredited to foreign countries. (8) At the request of the Premier, giving out decorations. (9) Issuing general amnesty orders at the request of Parliament; and issuing special amnesty orders, sentence-reduction orders or rehabilitation orders at the request of the Premier. (10) According to the decision of the Parliament and at the request of the Premier, issuing general or partial mobilization orders and orders imposing or terminating curfews. A presidential document promulgating a law or issuing an order must be co-signed by the premier. Article 53: A President who breaks the law or abuses his office may be impeached at the instance of one third of the Members of both Houses meeting jointly and with the approval of three quarters of these Members. An impeached President immediately loses his office. Article 54: When the presidential office hecomes vacant, the Speaker of the Federal House becomes the acting President for up to two months. Meanwhile, the Speaker of the National House is in charge of holding a new preslden- tial election. Chapter Six: The State Council Article 55: The State Council is the supreme executive body of the Federal Republic. The State Council consists of one Premier, one Vice Premier, several State Councillors and several Ministers. Together they form the Federal State Committee. Article 56: The Premier of the State Council is elected by the National House after each election of the National House itself, or after each National House vote of no confidence in the incumbent Premier, or after the incumbent Premier dies or otherwise vacates his office. The candidate who receives more than half of the votes becomes the new Premier. If no candidate receives more than half of the votes at the first ballot, the two candidates who have received the most votes will compete at a second ballot and the candidate who then receives more than half of the votes is the winner. If neither candidate wins more than half of the votes, balloting will contin- ue. If no winner emerges within 10 days, the President dissolves the National House and announces a new election of the National House. Article 57: The Premier nominates the Vice Premier, the State Councillors and the Ministers. The President appoints the nominees after they are confirmed by the National House. Article 58: The Premier of the State Council exercises the following powers: Presiding at meetings of the State Council; Making Administrative regulations and issuing decisions and orders under the terms of the Constitution and the law; Proposing resolutions to Parliament; Commanding and directing the federal armed forces. Appointing and dismissing federal government official; and Nominating federal Judges for confirmation by the Federal House. Article 59: The Premier of the State Council is responsible to the National House under the following terms: (1) The Premier makes government reports to the National House at regular intervals. The Premier and other members of the State Committee have the obligation to answer questions from Members of the National House when the National House is in session. (2) If the National House rejects, or makes unacceptable changes in, an important bill or a budget proposal presented by the Premier, the State Committee may, after revising the bill or proposal, present it to the National House again. If half of the Members in the National House then vote to uphold the original decision of the National House, the Premier either tenders resignation for the entire State Council or requests the President to dissolve the National House. (3) A National House vote of no confidence in the Premier of the State Council has to be initiated by one quarter of the National House Members and approved by more than half of them. After the National House passes a vote of no confidence, a new Premier is elected immediately under the terms of Article 56. After the new Premier is elected, the original Premier immediately tenders resig nation for the entire, State Council. If the National House fails to elect a new Premier within 10 days from the vote of no confidence, the original Premier immediately dissolves the National House. Article 60: The State Committee exercises the following powers: (1) Making decisions on tabling legislative bills, budget proposals, curfew proposals, general amnesty proposals and general or partial mobilization proposals at the feder Parliament. (2) Making decisions on tabling war or peace proposals and treaty proposals at the federal Parliament. (3) Making decisions on amnesty, sentence reduction and rehabilitation. (4) Making decisions on inter-ministerial matters. (5) Making decisions on matters proposed by the Premier, the Vice Premier, any Members of th e State Committee or any Minister. (6) Making policies on matters relating to Article 3 l . (7) Studying other matters affecting national interests. Article 61: In the event of a military invasion, a natural disaster or a catastrophic accident when the federal Parliament is not in session, the Premier issues emergency orders to deal with the critical situation which must be dealt with immediately. These orders must be retrospectively approved by Parliament within one month from the day on which they are issued. If reJected by Parliament, the orders immediately lose their validity. Article 62: The organization of the State Council is stipulated by law. Chapter Seven: The Judicial System Article 63: Judicial powers belong to the federal Courts and the Courts of the States, Provinces, Municipalities and Regions~ At the federal level, there are Courts, Courts of Appeal and a Supreme Court. Their organization is stipulated by law. Article 64: Federal Judges exercise their powers independently and without any interference under the terms of this Constitution and the terms of federal statutes. Article 65: The individual States, Provinces, Municipalities and Regions make their own law on the organization of judicial authorities to exercise judicial powers in the respective States, Provinces, Municipalities and Regions. The individual States, Provinces, Municipalities, and Regions should respect each other's jurisdiction. Article 66: The federal Courts are the highest-ranking tribunals. Except as are otherwise provided in Articles 37, 38 and 39, a citizen of the Federal Republic has the right to initiate legal proceedings in any of the States, Provinces, Municipalities and Regions. The Courts of the States, Provinces, Municipalities and Regions may not discriminate against litigants who are not local residents. Article 67: The federal Supreme Court interprets the federal Constitution and the laws and orders of the Federal Republic, doing so in the process of trying cases or upon application by eligible parties defined below: (l) One quarter of the Members of the Federal House or the National House, who sign their names. (2) The federal Premier. (3) The head of government or the supreme judicial authority of any of the States, Provinces, Municipalities and Regions. (4) Any federal Court or Court of Appeal. Article 68: The federal Courts exercise the following judicial powers. (1) Adjudicating disputes over the election of the federal Parliament, the election of the President and the election of the Premier. (2) Adjudicating disputes between the federal government and any of the States, Provinces, Municipalities and Regions. (3) Adjudicating disputes among States, Provinces, Municipalities and Regions. (4) Adjudicating disputes over federal laws and international treaties. (5) The federal Supreme Court hears cases appealed from a Court of any of the States, Provinces, Municipalities and Regions. (6) Adjudicating cases involving persons with diplomatic immunity. (7) Adjudicating cases in which the Federal Republic is a respondent. (8) Passing judgment on disputes among States, Provinces, Municipalities and Regions involving judicial jurisdictions. (9) Adjudicating cases involving jurisdictions on water and in air. Article 69: The judicial authorities of the States, Provinces, Municipalities and Regions have the obligation to assist in enforcing the judgments and sen- tences of the federal Courts. Article 70: Federal Judges are nominated by the federal Premier and are confirmed and appointed by the Federal House. Federal Judges have life tenure. They may not be terminated, removed or dismissed except under the terms of law. Their retirement age is stipulat- ed by law. Article 71: A federal Judge, while on the bench, may not assume a position in the executive branch of government or serve as a Member of Parliament; or engage in profit-making business; or take part in political activities. Article 72: The federal judicial establishment is funded by the federal budget. Article 73: Except where the law provides otherwise, all cases are tried openly. Judgments are required to be made public. Article 74: A citizen who is a member of an ethnic minority has the right to use the minority language in the court room. In an area inhabited by a minority ethnic group, judicial documents are written in both the national language and the minority language. Chapter Eight: Implementation of the Constitution and Constitutional Amendment Article 75: This constitution comes into effect from the date of its approval by the Constituent Assembly. Any amendment to the text of the constitution must be initiated by one third of the Members in either the National House or the Federal House and approved by three quarters of the Members of each House and by more than half of the legislatures of the States, Provinces, Municipalities and Regions. An amendment affecting an Autonomous State or Special Region must be approved by the legislature of the same State or Region. San Francisco, U.S.A. 31 January, 1994 Federal System: From Fantasy to Blueprint --Birth of a Proposed Draft Constitution for a Federal china-- [ Editor's note ] A number of earnest scholars from China Mainland, Hong Kong, Taiwan and various other countries, gathered first in Hawaii and then in San Francisco, have, after a year or so, produced a proposed draft Constitution for a Federal China. At a time of cataclysmic change, their work makes a specific contribution to the shaping of the future of the Chinese nation. lt is hoped that experts, scholars and persons in positions of power will pay attention to, and discuss, it. *** *** In late January, scholars from Hong Kong, Taiwan, China Mainland and U.S.A. met in a small gathering in San Francisco to "research a Constitution for Federal China". The meeting was organized by the 21st Century China Foundation of San Francisco. Some of the participants in this seminar drafted for the future China an "idealistic Constitution based on the realities," also known as "The Constitution for the Federal Republic of China". The Constitution is the supreme law of the land. It is the work of the Constituent Assembly. A good and efficacious Constitution is not "made" by a few experts or scholars who use their imagination. It grows and develops in a peaceful environment. "A Constitution grows; it is not manufactured." This is the consensus of the San Francisco meeting. The participants in the meeting, in the true spirit of "explorers," searched for a proposed draft Constitution for a post-cataclysmic China. A federal system with confederal characteristics The draft Constitution has eight chapters totalling 75 articles. The titles of the eight chapters are: General Principles, citizens Basic Rights and Obligations, the Federal Structure, the Parliament, the President, the State Council, the Judicial System~ and Implementation and Amendment. The most important feature of the draft Constitution is its being a "federal Constitution with confederal Characteristics." Under given historical conditions, peo- ple can change only those things which can be changed. The things which cannot be changed or cannot be changed for the time being must be accepted with equanimity. For a long time to come, different parts of China will have differences which are hard to make disappear. It is precisely out of this consideration that the draft Constitution divides the component parts of the future China into four major: the Autonomous States, the Autonomous provinces, the Autonomous Cities and the Special regions. The Autonomous States are Inner Mongolia, Taiwan, Tibet, Xinjiang, Ningxia and Guanxi. The Autonomous Provinces are Shandong, Shanxi, Sichuan, Gansu, Guangdong and Liaoining. The Autonomous cities are Shanghai, Tianjin and Beijing. The Special Regions are Hong Kong and Macao. These component elements of the Federal Republic are shaped by history. If, at the time of the formation of the Federal Republic, we should try to make compre- hensive or major changes affecting the boundaries of the component elements, bound- ary disputes and conflicts would surely ensue. Therefore, the basic principle used in dividing the Federal Republic into its component elements is: "Respect for the status quo and respect for history." There are four groups of component elements of the Federal Republic. Each group is tied to the Federal Republic in a special way. The Autonomous States and Special Regions are loosely tied to the Federal Republic, in a relationship which has confederal characteristics. The Autonomous Provinces and Autonomous Cities are more closely tied to the Federal Republic, in a relationship similar to that found in a normal Federal republic. Autonomous States can make their own Constitutions The draft Constitution of Federal China provides in black and white for the division of powers between the Federal Republic and its component elements. It also provides that each Autonomous State may make its own constitution and that each Autonomous Province, Autonomous City or Special Region may make its own basic law. The Federal China is vastly different from the traditional China. In the tradi- tional China, the power of the local governments comes from the Central Government. Under a Federal system, the power of the Central Government will come from the component elements of the Federal Republic and from the people. The Basic Law of Hong Kong, passed in 1992, provides that the post-1997 Hong Kong shall have various powers, which, in many cases, exceed the powers of the states of U.S.A. However, these powers are given Hong Kong by the Central Government in Beijing. They can be taken away overnight. The draft constitution, based on the principle of "Respect for the status quo and respect for history," and tak- ing into consideration the Joint Declaration of Beijing and London concerning the question of Hong Kong, provides, in a special clause of Article 37, that changes effecting the Hong Kong Special Region's various powers may not be made without the approval of the Special Region's Legislature. Under the draft Constitution, Taiwan and Tibet are Autonomous States. They are vested with special powers under special clauses. The draft Constitution provides that "the Autonomous State of Taiwan shall have the power to issue state passports, travel documents and visas and to establish the state court of final appeal," that "the Autonomous state of Taiwan shall be financially independent and exempted from fed- eral tax" and that "the Autonomous State of Taiwan shall have the power to keep its arrned forces and the power to refuse the presence of federal forces." With regard to the Autonomous State of Tibet, the draft constitution, taking into full consideration of the spirit of Dalai Lama's Strasbourg speech of 1988, provides that "the Autonomous State of Tibet shall be a national conservation area, where the testing of nuclear, chemical and biological weapons and the storage of nuclear wastes shall be banned." A geographically diversifled China Under a federal system, the Chinese provincse and cities will have radically different relationships with the Central Govemment in Beijing. The traditional kind of centralism will cease to exist. Beijing, Shanxi, Guizhou and so forth will have their own Basic Laws. All Autonomous Provinces and Autonomous Cities will have their own political systems suited to their local characteristics. The Autonomous Province of Yunnan will probably be known as the Premier. Beijing Municipality will probably have a one house system and its municipal affairs will probably be managed by a "Mayor-Premier" system. The Federal Republic will let all its parts develop their full potentials, each in its own way and according to its own strong points. Thus, a geographically diversified China will come into being. Conceming the Parliament of the Federal China, the draft Constitution pro- vides that it shall be a two-house system. A National House shall have members who are returned by elections and whose number is proportional to the population. A Federal House shall have members who are returned by election or appointment from the individual states, provinces, cities and regions. The Federal House shall have the power to impeach members of the State Council and the power to approve boundary changes within the Federal Republic. A stable cabinet system With regard to the Federal Government system, full account is taken of China's national characteristics, and what has been chosen may be called "a stable cabinet system." The Federal Republic shall have a President and a Premier. Yet this will not be a case of "two heads of government." The President shall be a figurehead. He has to have the approval of the Parliament or the approval of the Premier before he can exer- cise any of his powers. For instance, he shall appoint the premier decided by the National House and he shall appoint the Premier decided by the National House and be shall appoint or discuss Vice Premiers, State Councillors and Ministers at the request of the Premier. The President is the symbol of national unity. The overthrow of a cabinet will not affect the position of the President. The President is also the safeguard of stability despite changes of government. When there is a constitutional crisis, the President shall participate in its resolution, thus playing a politically stabi- lizing role. The draft Constitution provides that the Premier shall be elected by the National House and that the premiership shall be the seat of the supreme executive power of the Federal Republic. The draft Constitution exemplifies the principle of democracy, which is that the power of the government shall come from the people and that the people shall decide which administration should be in power and when it should be replaced. National realities not to be overlooked The draft Constitution of San Francisco makes a distinction between "welfare benefits" and "rights." It makes no promises concerning "welfare benefits." It con- tains various provisions for "the safeguarding of human rights." Here, however, it is not flawless. The freedom of moving to live in a different area is a basic human right. But this human right cannot be fully safeguarded in Federal China. The movement of people from the Autonomous Provinces and Autonomous Cities of Federal China to Hong Kong, Taiwan or Tibet will be restricted. The Dalai Lama is concerned that Han Chinese will migrate en masse to Tibet. This will not happen. The draft Constitution of San Francisco paints a vivid picture of the future China, which accommodates different interests and demands to the fullest extent pos- sible. The realities of China are: the existence of the political entities of Mainland China and Taiwan; the future systems of Hong Kong and Macao being subject to the Sino-British and Sino-Portuguese joint declarations respectively; Tibet's vast religious and cultural differences from other parts of China; geographical differences and grow- ing regional power as a result of the development of the market economy in China. In view of these realities, China is already in the initial stage of a federal system. No political party or political force can ignore this fact. This draft Constitution is based precisely on a consideration of the realities. Even so, the draft Constitution is an ide- alistic Constitution. In China's future constituent assembly, the need for compromise among political forces will "drastically water down" this "idealistic Constitution"; this is certain. What will emerge will be "a realistic Constitution with idealistic prin- ciples." When this draft Constitution is officially adopted and promulgated, China will have passed from "the Republic of China" and "the People's Republic of China" to "the third republic." The present draft Constitution is based on the draft Constitution prepared by the "Academic Seminar on China's Unification Mode and Constitution" held in Hawaii in 1993. Before the Hawaii meeting, LIU Kai Shen, YAN Jia Qi, WENG Song Ran, LIAO Ren, WU Ying Chao, YANG Jian Li, ZHANG Xin, ZHAO Sui Sheng, XU Bang Tai and ZHANG Zuo Ren had drafted individual articles. At the meeting, valuable critigues and comments were offered by WU Yuan Li, HU Fo, GUO Ying Yi, HUANG Mo, ZHU Yean Han, MING Ju Zheng, WU Guo Guang, ZHANG Wai Guo and ZENG Fu Wen. Principal authors of the draft Constitution The principal authors of the proposed draft Constitution of San Francisco were WENG Song Ran, ZHANG Xin, LIU Kai Shen, ZHAO Sui Sheng, YAN Jia Qi and ZHANG Wei Guo. ZHU Yean Han offered many valuable comments. CHEN Qing Lin, ZHENG Zhi Gang and LIU Jun Guo took part in the preparation of the meeting and in its work. Both the Hawaii and the San Francisco meetings were organized by the 21st Century China Foundation of U.S.A. What needs to be clarified is that the draft Constitution does not represent the views of the Foundation. Nor does it necessarily reflect the view of the participants in the Hawaii meeting. The proposed draft Constitution, though revised many times, may still be flawed in places. It is published in the hope that comments will be made on it so that it may be further revised. (By YAN Jia Qi ) 8 February, 1994