Development of the Grassroots Democracy and Legal Reform in China
作者：Li Fan 发表时间：2006-11-29
In the macro commentary of the report on grassroots democracy in 2004, I have mentioned two recent trends which are the prime movers of the sustainable development of grassroots democracy in China: first, the democratic political reform which the local government promotes; second, the people at the grassroots level promote grassroots democracy to safeguard their own rights. In 2004, these two development tendencies were not only very clear, but also made certain achievement, and they have become fundamental forces to promote democracy in China. It is of no doubt that the development of the grassroots democracy in China should be the continuous extension of these two developing tendencies in 2005, but there still exist many problems, most of which relate to the reform and perfection of rule of law in China.
New Development of the Grassroots Democracy in China
According to the development of the grassroots democracy in 2005, two democratic trends of 2004 have both been growing continuously. In particular, the new break-through has appeared with the democratic reform promoted by the local government.
In 2004, the democratic reform promoted by the local government were included such as the direct election of seven chiefs of the township government in Honghe Prefecture of Yunnan Province and the electoral reform at both township and county level in Sichuan, Jiangsu and some other provinces. According to the development in 2005, the direct election of secretary of the Party Committee at township level in the above-mentioned places spread throughout the country, including most areas in Jiangsu and Sichuan provinces. But, from the viewpoint of the most successful case of the grassroots reform promoted by the local governments in 2005, it"s not the reform of electoral systems, but of the public budget in the local governments promoted by Wenling City of Zhejiang Province. In April 2005, a democratic forum concerning public infrastructure was held between the masses and Zeguo Township government in Wenling City. Though it was only carried out for the long term democratic consultation in Wenling, and was not listed in the plan of the public budget reform, it already possessed the essential content of public budget reform in a sense. The reform of public budget at township level promoted by the people"s congress of Xinhe Township of Wenling in July of this year, it was a qualified public budget reform, which created power balance between the local people"s congress and the township government. 1 It also made the public budget reform promoted by Ministry of Finance come true at the local government level, a ground-breaking achievement in China"s public budget reform. Though this reform was only a preliminary experimentation, but the meaning is enormous. According to the course of the reform and its influence later on, this reform has certain significance in several aspects: first, it really reflected the will of the people in the course of budgeting. The Xinhe reform gave play to the role of the local people"s congress, and all the budgets made by the government had been reviewed the local people"s congress. The local government revised the budget under the request of the deputies to the local people"s congress, and such a method had never appeared in budgeting process throughout Chinese history, thus it set a precedent. Second, this budget reform actually started the process of reforming people"s congress in China. Though this reform was carried out in the people"s congress at the township level, it gave full play to the role of supervision of the deputies to the people"s congress on the government, especially the function of checking and balancing on public budget, and it also has set a precedent in China, therefore it have essential content of the political reform. Third, because the reform is related to public budget and closely linked to public interest, it helped shift the focus of government expense to public purpose. Fourth, during the reform of the public budget, the governmental power has been restricted through the reviewing, amending and passing the budget carried out by the people"s congress. Thus, the government is restrained from acting freely and irresponsibly, and has to follow the negotiated budgeting plan. Such a reform has turned the power without restrain into the power with restrain, which has found an effectual reform outlet of great significance in the reform of China"s governmental management in recent years. Judging from the situation after that, the reform produced considerable political significance, and some local governments throughout the country have already considered implementing their reform in local governance in accordance with the said thought.
From the case of the public budget reform in Wenling, the development of grassroots democracy promoted by local government became the leading strength of China"s democratic development in 2005.During the process of promoting grassroots democracy in China, gradually exploring a grassroots approach that combines the political reform and democratic development in the context of Chinese politics is of tremendous significance. Though the Chinese local government in 2005, judging from the surface, did not promote somewhat democratic political reforms in essence, most of which were visualized or the reforms carried out in the mass organizations, but the public budget reform in Wenling improved grassroots democracy and pushed it into Chinese political institution and generated essential significance. As to this, the democratic development at the grassroots level in China was promoted by the local government, which played a major role in the development in 2005.
The democracy at the grassroots level promoted by the masses safeguarding their own rights several years ago has continued thoroughly in 2005 too, and its development scale was also expanded, in which various forms had been produced to meet the demands. For example, the owners" committee of the community continues launching various activities in order to safeguard the owners" rights and interests, and the internal institutional framework and the approach of safeguarding their rights were developed simultaneously; though NGOs face a lot of difficulties, they have continued to secure more support from the public as well as local government, and thus are playing an increasingly important role in Chinese society. Whether in the countryside or in the city, both the intensity of organization and activity of the grassroots have progressed and have obtained much achievement. For example, Zou Tao, a resident of Shenzhen, sent his request on the internet to run for the deputy to the city people"s congress at the beginning of 2005, though it was impossible legally, his daring spirit of participation in the election did initiate a great deal of sympathetic response from the masses, and got hundreds of thousands of people"s support on the internet. Similar ordinary masses" participation or their attempt to participate in public affairs has developed in 2005, and the various forms appeared in the whole country, which indicated the growing awareness of public participation. For example, the farmers of Puzhou Township of Yongji City, Shanxi participated in the farmers" activity of safeguarding their rights through the farmers" association. NGOs formed by farmers have developed in various degrees in all parts of the country, and both the farmers" consciousness and capacity of safeguarding their rights have expanded to some extent. Though the democratic development of grassroots type of right-safeguarding met very great predicament in 2005, the broad masses" participation enthusiasm didn"t decrease because of that, on the contrary, it was strengthened, which has laid a very good foundation for development of grassroots democracy in the following several years in China.
While seeing the democratic development of grassroots type of right-safeguarding, the development of this kind of grassroots democracy really met very great challenges in 2005, and some stagnation or predicament in several directions appeared. The development of NGOs in China, especially the environmental protection NGOs produced big influence once in 2004, which not only promoted the development of the other types of NGOs in China but also push forward grassroots democracy in China to a certain extent. But the development of environmental protection NGOs stagnated in 2005, and they met very great difficulty because of those NGOs didn"t talk with related departments or ministries of the central government on the dam construction of Nujiang River at the right time, which damaged overall image of NGOs. Because of the external influence at the same time, some misunderstandings emerged over the relationship between Chinese NGOs and the government, so the development of NGOs in 2005 met difficulty. The activities of protecting grassroots" rights in China had once developed fast several years ago, and had achieved great progress, for example, some lawyers who favored safeguarding the people"s rights took the lead in activities of protecting grassroots" rights emerged in the activities such as the Sun Zhigang case, and they promoted the development of grassroots movement of safeguarding the rights through a series of cases, which had produced a drive in the society that pushed China"s grassroots democracy, but these right-safeguarding activities also met tremendous difficulty in 2005. It is mainly because the conflicts between activities of protecting rights and the local governments became fiercer, thus their efforts were hindered in many cases and their development in 2005 met predicaments, and basically stagnated. The development of the grassroots", especially the farmers" grassroots democracy ran into some questions because the contradiction between activities of protecting grassroots" rights and local government has deepened. For example, in the election of rural village committee carried through in the very famous Qianjiang area of Hubei, though Yao Lifa and some others helped to train the farmers, and the farmers also realized the importance of election, the farmers" right-safeguarding activities conflicted with the interests of local government, which made the local government control the process of election strictly. Similar problems also appeared in the other places throughout the country, the practice of getting elected through bribery in the rural areas increased very much, and the disputes after the election also spread, and furthermore they were unable to be solved, therefore the contradictions arisen from the election were very obvious in the all parts of the country in 2005. The right-safeguarding activities among the urban masses mostly concentrated on the owners" committees and property companies, which had the tendency of expanding the development in 2005. Because most local governments favored the property companies, which made the owners and the local government conflict, what made the settlement of the contradictions more difficult, thus influenced the development of grassroots democracy.
The Contradictions and Conflicts in the Development of Grassroots Democracy
From the development of grassroots democracy in recent years, we may see conflicts and disputes on the rise in various aspects. What kind of reason makes the grassroots democracy to present such a situation? According to the actual conditions, the increase of conflicts in the development of grassroots democracy mainly stem from the different interests of various subjects. The various stakeholders are unwilling to make a concession for their interests, and there is no chance for compromising and a corresponding institutional mechanism, thus conflicts are produced therefrom and difficult to be solved for the moment. In fact, with the promotion of China"s market economy and the development of the society, there are growing number of stakeholders of different interest and increasing pursuit of personal interest. So, not merely the kinds and forms of various interest conflicts increase day by day, but also the degree of their conflicts are increasing, though one problem may be solved, the other problems will arise thereafter. Thus, the increase of the interest conflict embodies the dynamic trend of the society and its activeness, and it is nothing strange, but if it is not dealt with well, it will influence the feelings of each class of the society and community, and arouse their extensive discontent thereafter.
The increase of interest conflict in the development of grassroots democracy also stems from the problems in the development of democracy itself, which were not solved through compromise and concession by the concerning parties. In reality, these interest conflicts are increasing, the range and content of conflicts are also expanding. As for grassroots democracy, the interests contradictions of each side involved are as follows, local government (including the county and township governments) and farmers, among farmers themselves, farmers and local developing companies, and so on. But according to the actual conditions of grassroots democracy, the principal contradiction reflects the contradiction between the local governments at the basic level, especially the township governments and farmers, the contradiction within farmers is related to former contradiction in fact. Judging from the contradiction between farmers and township governments, we may infer that it mainly reflects the backwardness of the grassroots political administration approaches in the rural areas, the township governments at the basic level do not understand, and are reluctant to practice the autonomy policy of villagers promoted by the central government; the local political institutions are backward, and the officers of the township governments are still applying the traditional method, or rather, the bureaucrat"s way of treating the farmers; the officers" behavioral approaches lag behind, and they are unable to embrace changes together with farmers, and unwilling to listen to farmers" opinions either, still carrying on the rural management through compulsory methods and only carrying out higher authorities" opinions. In terms of the farmers, their backwardness in information, education, culture and economic development makes it difficult for them to understand, they remain unsatisfied with the administrating methods employed by the township governments, thus a lot of contradictions have been produced therein. For many years in the past, the principal contradiction between the farmers and the township governments had arisen from the township governments levying various taxes and fees from the farmers, which had aggravated the farmers" burden. In fact, the blame should not be placed squarely on the township government, and it is related to the taxation reform promoted by the central government. After the tax system reform in 1993, the payment by the central government needed to transfer to the local government was difficult to end up in the hand of township governments, whereas the inflation of township organizations makes the local tax insufficient. With the dire financial situation, the township governments have to levy the farmers. Such a macroscopic political and economic frame makes the rural politics at the grassroots level produce the potential deep contradictions, which also has a potential impact on development of grassroots democracy in the rural areas. With the development of grassroots democracy in the rural areas in recent years, especially the constant implementation and deepening of villager"s autonomy and elections at the basic level, in particular, under the guidance of " human-oriented " administration idea advocated by the central authorities, the farmers need to express their own opinions, and they need to improve their own living standard too, therefore they are certain to conflict with the arbitrary charging act of the township governments, and this conflict is deeply reflected by the farmer"s request for autonomy and democracy at the basic level. Though the central authorities repeated orders to forbid charging the farmers arbitrarily, a lot of township governments have to charge the farmers in various ways to cover local governments" basic cost, which make the relationship between farmers and township governments even more serious. Therefore the so-called “‘Three Rural" Issues" came into being. The core of “‘Three Rural" Issues" is that farmers enjoy no political right in essence, and the villager"s autonomy cannot be implemented. While the farmers have no political right, they either have to pay the taxes and fees to the local government, or start arduous appealing for help, while the way of appealing for help were obstructed, they thus make desperate moves such as surrounding the township governments, burning the governmental offices and other protest methods, which is the root causes of rural political tense at the grassroots level. Under such a tense political circumstance, and the development of grassroots democracy will inevitably meet great resistance, and that is because both conflicting sides are unwilling to concede, and cannot adopt the democratic, peaceful and legal methods to solve the problem. The local governments at the grassroots level in the conflict are in the surging position, and they think their administrative power can solve the problem, therefore they certainly are unwilling to give in, and refuse to implement the policy of villager"s autonomy or agree with it overtly but covertly oppose it, so the rural democracy at the grassroots level becomes an empty talk without concrete content. The superficial rural glory achievement in democracy at the grassroots level is but the result that being glossed over by the local government, which does not represent the realistic situation. To the farmers, because they are in the weak status, they have to adopt the method of appealing for help, surrounding the government, refusing to pay the moneys, which are the actions in reason. When the democracy at the grassroots level has being developed constantly in recent years, they also attempt to express their interests request and political demand through democratic ways or the ways of election. Especially in 2005, while centering on the development of the rural democracy at the grassroots level, the farmers" seriousness over the villager"s autonomy and the democratic election improved far more than ever before, but in a situation that farmers have no political rights and the grassroots politics is still controlled by the grassroots government, the degree of such a democratic development is very limited. This kind of situation indicates that the conflicts between the grassroots governments and the masses have influenced the development of grassroots democracy in rural areas; therefore the conflicts will inevitably increase to some extent.
The central authorities took some firm measures in 2005, and first it reduced the agricultural tax in a lot of provinces, and then cancelled the agricultural tax completely at the end of the year, which are beneficial to alleviate the farmers" burden and rural economic development and are welcomed by farmers too and has relieved the tense political situation in the rural areas. In addition, the central authorities also attempt to solve the education funds problem of the poverty-stricken rural areas in the northwest part of China, which will relieve rural social contradictions, a favorable approach to alleviate the farmers" burdens. But we should also see that, because these policies have not solved the basic contradictions between the rural government at the basic level and the farmers, especially they did not solved the problems that the farmers did not enjoy political rights, so the contradictions and conflicts in rural areas did not change fundamentally just because of the change of the central government"s policy. The agricultural tax originally paid by the farmers belonged to local tax, which was actually one of the financial sources of the grassroots government. Though the reduction or cancellation of agricultural tax relieved the burden of the farmers, however, it did not solve the source problem of finance of local government at the grassroots level fundamentally. From the perspectives of the central government, allocating specific funds to be transferred to the local government helps solve the problem of financial restraints caused by abolishing agriculture tax. However, due to various reasons, in many regions of China, this financial transfer handed down from the central government didn"t reach local government in the end. Then a lot of governments at the grassroots level adopt two methods to obtain their capital source, one is to continue levying the farmers via various fees, for example increasing the amount of family planning fine, various charges on certificates, arbitrary charge of education, and etc., and the price of agricultural goods and materials rose by a wide margin at the same time, the rural hospitalization cost improved by a wide margin 2 , thus the economic income that farmers obtained from the cancellation of the agricultural tax was given a discount soon; another way that quite a lot of grassroots governments adopted is to practice land-trading, and then make profits from it. A major problem that farmers appealed for help arose from land disputes in 2005, because of which a lot of serious rural conflict incidents were caused. Such as the conflicts in Dingzhou, Hebei Province, in Taishi, Guangzhou and in Dangxi, Jinan were all initiated because of unreasonable land trades. In such trades, from the examples described above, they are all related to the grassroots government"s interests. The local government captured a big slice of pie in land-trading, and in fact it is a quick and dirty way to accumulate financial resources compared to the previous approaches such as tolling down farmers houses and taking away their TVs in order to force farmer to pay fees. Therefore in a lot of developed areas or in the urban suburbs where economically underdeveloped, the local governments" main sources of financial budget are obtained from the land-trading.
Those two ways indicate that the local government at the basic level and the farmers became two opposite sides of interest conflicts. The question whether who is reasonable or what is beneficial for the long-term advantages of the development of China"s economy may not be discussed first, however, the question is while the economy is developing at top speed, as to the farmers whose interests had been damaged, they should have one channel to express their reasonable interests, and what"s more, local government should have compensated for farmers" interests sufficiently. But the emergence of these problems indicates that such a course has not appeared. According to the situation in recent years, farmers, in order to protect their own interests from suffering a loss, must take some measures. On condition that their appealing for help is retarded, the measure that the farmers can adopt may be violent or peaceful. According to the situations in the three cases described above, the farmers had adopted rational, legal, democratic measures in an attempt to solve the contradictions and conflicts with the local governments; however the farmers in the three cases described above did not succeed. Among them, the farmers of Dingzhou, Hebei Province had to fight back the violent acts of the local criminal syndicate, the other two cases the farmers were blocked by the local governments, or their recalling requests were refused, or finally the method of getting elected through bribery were adopted. Therefore, some relatively conspicuous incidents concerning the conflicts of grassroots democracy appeared in 2005, which are thought-provoking and inspiring.
The Imperfection of Electoral Procedure and the Lack of Related Laws Are the Major Obstacles for the Development of Grassroots Democracy
When the farmers attempted to express their opinions in a democratic way, but some local governments exploited the incomplete electoral procedure and the lack of relevant laws to manipulate the democratic election, control the legal result of election, which not only aroused the farmers" more discontent, but also destroyed the policy that the central authorities decide to develop grassroots democracy. These became the major obstacles in the development of grassroots democracy. As for the questions occurred in recent years, they mainly arose from the excessively simple and under-standard electoral procedure and the lack of relevant legal provisions, which need further improving and upgrading in the practice of improving the grassroots democracy.
1. Defects Existed in Electoral Procedure and Institutional Design
According to the practice of democratic development at the grassroots level in 2005, the contradictions and conflicts between the rural government at the basic level and the right-safeguarding farmers presented various situations. The farmers in many places attempted to express their will via democratic approach, but because of some major procedures were manipulated in the election, the final result of election changed. Some rigged electoral procedures were aged problems, and others are newly emerged problems.
Villagers" Electoral Commission
Villagers " Electoral Commission is the organization that in charge of re-election work in rural areas, and it should be elected by the farmer voters of the village according to the regulations. But two kinds of situations had emerged in practice, and they changed the nature of the farmers" presiding over Electoral Commission. First, the township governments dominate the Electoral Commission. While in election, the township Re-election Office(the township Party Committee in fact) sent cadres to the villages to keep the villagers" election in their own hands, or dominate the whole electoral course, or take hold of the key link, such as mobile polling box, proxy voting, vote-counting, and etc., so as to rig the election. Second, though it was the Villagers" Electoral Commission that was in charge of the election, it must obey the leaders of the township Re-election Offices. Therefore, even though the township governments are not directly involved in the election, the will of the government is reflected and actually dominates election process and results. Whichever situation it is as described above, the Villagers " Electoral Commission in the rural areas could not keep administrative neutrality, and it either reflected the intentions of township organizations by electing the candidates favored by the government, or had the Electoral Committee dominated by a certain group of villagers. Thus, the Electoral Commission could not execute the electoral procedure openly and fairly, and in order to serve its purpose, they manipulated the elections and produced fraudulent ballots, which finally set an obstacle for the fair and just election course.
Proxy vote is employed much in the democratic election at the basic level in China, whether in the city or in the countryside, the vast exploitation of vote by proxy had brought a lot of confusion. A lot of officers and scholars are all very clear that the disadvantages brought by proxy vote, but it is still in use and one purpose of this approach is to meet the demand of "the registered electors accounting for more than half of the total number of voters, the voters account for more than half of the registered electors" , that is the so-called "dual-more-than-half " requirement, therefore the institution has suffered the censure of a lot of scholars and practical workers, but in the regulation related to grassroots democracy is still valid and before it is not revised, the principle of "dual-more-than-half " must keep on being observed and implemented. But they think if this voting method continues to be adopted: first, the quantity of proxy vote must be as few as possible; second, the implementation of vote by proxy must be strictly controlled. According to the stipulations in some relevant laws, while a voter accepts a proxy, he or she can only take the place of ballot-casting for another three voters except his or her own ballot, and what"s more, there must be these voters" proxies, which makes an effective vote by proxy. Some local governments had made clear-cut regulations that the proxy vote only confined to family members. The main purpose of this provision was to reduce the quantity of votes by proxy and limit the use of vote by proxy strictly. But in practical work, the electoral organizations in some places, in order to achieve the goal of letting their satisfied candidates be elected, implemented vote by proxy in large amount and checked the voter"s proxy laxly, thus the quantity of votes by proxy did not confine to three, the number of votes by proxy of a voter even reached twenty, thirty or more. Some places even collected the votes belonged to the voters who did not participate in the vote first, and then distributed their votes to non-voters to concentrate on voting for the candidates that the Electoral Commission appointed.
Mobile Polling Box
Mobile polling box is also a controversial voting mode reproached by the scholars and some practical workers most, because such a voting mode is very apt to cheat. The mobile polling box institution has two main disadvantages, one of which is that the people holding mobile polling box to collect ballot are very apt to substitute ballots for another surreptitiously and cheat during the voting process, and the other is while the voters cast the ballot in front of mobile polling box, facing the people who hold the ballot box, they might feel stressed and were unable to vote in accordance with their actual will. But there are two basic reasons that the institution of mobile polling boxes is unable to be cancelled at once, one is that the local residents lived spreading around, while going to the central polling booth, the farmers did not quite like going there to vote for there being a long way to cover, thus in the end the institution came into use. Another reason is that the institution had to be employed to satisfy the principle of “dual-more-than-half” for the purpose of increasing the polling rate, But according to the suggestions of some scholars and experts, the mobile polling boxes should be used as few as possible in election, or limited to an employment rate and condition, for example, 5% or 10% of the voters can vote in the mobile polling box, and only the weak elderly unable to walk can exploit the mobile polling box, and etc. Most normal voters should try to go to vote in the polling booth, thus, the fairness of election can be guaranteed. In fact, in the electoral procedure of village committee election each province stipulates that the voters must cast their ballots in the central polling booth fixed in each village. But from the past survey, we may see that the number of using the mobile polling box to vote in many places is vast; there are also quite a lot of villages only using the mobile polling box instead of fixing the polling booth in the village on the excuse of the population sparsely populated, however the mobile polling box was manipulated by the officers from the local government at the basic level. Therefore, it was very difficult for the farmers to make their real choice while facing the mobile polling box, and the ballots in the mobile polling box were very easy to be replaced. Thus the vast use of mobile polling box in most places made the democracy and fairness of election at the basic level greatly discounted.
Many local elections did not abide by the principle of counting ballots publicly. They often assembled the ballots together and sent the ballot box to township government to count after ballots have been cast. The result of ballot counting was not announced until the next day, which violates the principle of ballot-counting publicly and announcing the election result in time, therefore, it made the phenomenon of cheating in election expanded.
Recall in grassroots elections in China is a formidable job, after several years" efforts, several successful recall appeared, however, generally speaking, recall still remains very difficult. According to the regulations regarding recall provided by each province, so long as one-fifth of the voters agree and require the recall, the recall procedure may be initiated. Paragraph 2 of Article 29 of " The Solutions Concerning the Electoral Procedure of Villagers" Committee in Beijing " was passed by the Standing Committee of the People"s Congress of Beijing Municipality on September 22, 2000 stipulates, "More than one-fifth of the villagers who have the right to vote of this village may sign jointly to propose the recall request of villagers" committee members. The recall request shall be put forward to villagers" committee in written form with recall reasons. The villagers" committee should hold the villagers" meeting within 30 days after receiving recall request and vote on it. "Therefore, the recall clause is only a procedural regulation, that is to say, a certain amount of voters demand recall and put forward recall reasons in written form, the recall procedure may be initiated, and the villagers" committee shall hold the villagers" meeting in a certain period on receiving the recall request, and vote on it.
From the recall cases happened in all parts of the country, we may see that the initiation of the recall procedure was determined in line with the principle of procedural checks. However, the recall case happened at Taishi Village in Guangzhou in 2005 put forward the question whether the recall reasons should be validated in order to start the recall procedure. According to the current organic law of villagers" committee of P. R. China, besides the procedural regulation that more than one-fifth of the voters of this village can jointly bring forward recalling the villagers" committee members, it also provides that the recall request should put forward the reasons for the recall" , but in the recall case at Taishi Village in Guangzhou, the local government put the legal provision that " one should put forward the reason of the recall" into " whether the recall reason is established " can determine whether to start the recall procedure. Whether it is the under-preciseness of the legal provisions leading to the ambiguity on earth, or the grassroots government explained the legal provisions illegally, is not to be discussed here at present, but the relevant legal provisions authorize the determination and organization power whether to start up the procedure regarding the recall of villagers" committee members, the possible recall target, to exercise, which increased the operational difficulty in electoral procedure at the grassroots level, especially the difficulty of recall. In addition, the grassroots generally proposed some reasons for recall while proposing the recall requests, for example, when the recall target is corrupted, not serving the masses, according to the government"s understanding in the case of Taishi, these kinds of reasons needed to be approved by the local government first and thus could be established, then they could vote on the recall motion, such a recall case would be basically unable to continue. In the Taishi Village Recall Case, by making use of the foresaid measure made the members of the recall committee that the voters elected withdraw, which made the Taishi Village Recall Case aborted. Moreover, in line with the laws regarding the recall of members of the villagers" committee, 3 the procedural regulation regarding the startup of recall includes that the recalling reasons shall be brought forward and the joint signature of more than one-fifth of the qualified voting villagers, so long as they are in accordance with such a formal procedural, the related departments should hold the villagers" meeting voting on the recall request in time while listening to the defensive opinions of the recalled target. It is of no need to carry out the substantive examination such as the so-called “whether the recalling reason is established”, because whether the recalling reason is established is determine by the villagers having the right to elect, which should not be manipulated by the minority"s authority.
Such a situation also took place in the recall cases in recalling deputies to the people"s congress at the grassroots level. For example at the end of 2004, some voters in a electorate of Fengtai District, Beijing put forward a written request on recalling a certain deputy to the people"s congress elected in their electorate to the Standing Committee of the People"s Congress of Fengtai District. 4 In July, 2005, the Standing Committee of the People"s Congress of Fengtai District replied voters that this deputy to the people"s congress worked conscientiously and was willing to serve the voters. Thus, the recalling reason was invalid, and in the end the recalling procedure was never started. But the voters" appraisal was completely reverse, they thought this deputy to the people"s congress refused to meet the voters and were unwilling to serve them. In view of the procedure, though this unsuccessful recalling case meet the due procedural requirement that the signature of 50 voters can put forward the recalling bill to recall the deputies to the people"s congress stipulated in the newly-revised Electoral Law in 2004, in the end because the examination of the recalling reasons were not approved by local people"s congress, the recalling procedure came to an end. Definitely, this recalling case involved some other factors such as interest conflict between the company taken charge of by that targeted deputy and the masses, but it presented the same problem as that had been exposed in the rural election at the basic level: whether the startup of the recalling bill is merely a procedural examination on earth, or it should also give considerations to the substantial examination of the reason at the same time? Is the recalling bill after the substantial examination significant? While all the examination organ have the authority to refuse the recalling request brought forward by the voters, it is the fact that the right choice of the majority is determined by the minority"s authorities, thus practically the voter"s right of recall performs no function, and the recalling bill is unable to go on at all. Therefore, this kind of institutional arrangement does not benefit grassroots democracy in China definitely.
Some problems concerning the democratic arrangement at the basic level discussed above, especially the defects in electoral institution make the democratic development at the grassroots level in the rural areas met great difficulty in particular. As the farmers" interests conflict with the local government at the grassroots level, these questions and defects will make the democratic and legal environments in some rural areas become more difficult, which will be disadvantageous to the democracy at the grassroots level is developed, on one hand they will destroy the farmers" autonomy at the grassroots level, and thus make the villagers" self-management unable to realize, on the other hand they will destroy grassroots democracy, and thus make various corresponding democratic systems at the grassroots level unable to establish.
2. The Lack of Relevant Laws Regarding Grassroots Democracy
The lack of relevant laws is another obstacle in development of grassroots democracy. If there are no corresponding laws to safeguard the democracy at the grassroots level, grassroots democracy can not be developed steadily forward. In fact, the development of grassroots democracy in China lacks the safeguard of an intact legal system, when the contradiction and disputes emerge in the grassroots democracy, what we need urgently is the application of law and involvement of the administration of justice, and then make fair judgment in accordance with the law. But in the whole legal system of China, it is short of relevant laws to solve these contradictions and disputes, and there are no corresponding legal provisions to start the judicial process, let alone to offer various legal remedies to the citizen"s democratic rights. Even if the ordinary people go through innumerable trials and hardships, while entering the judicial process through the extremely limited lawsuit route in the end, but they will find that the judicial authority cannot solve any problem in a just way that the civilians facing because of its own inherent restrictions and the various extra-judicial factors, cannot return to ordinary people just and solving any problem at all. Therefore, the existence and development of any democracy, if there is no law to safeguard, will never appear.
In the development of grassroots democracy in 2005, the most typical case of calling for law to safeguard the development of democracy appeared in Dangxi Village, Jinan. When the village carried out the elections, a gang of people elected via bribing the voters, and they obtained the leading position of the village committee finally. In the course of election or after that, a lot of voter stood out to prove that the elected obtained the victory through bribery, and showed the written materials they wrote as the evidence. In the rural elections of China, there were originally few cases regarding being elected through bribery, but the tendency increased and spread gradually in recent years. Because in the developed regions or the places rich in resources, after being elected as the leader of villagers" committee can control quite most substantial economic power of the village, which will arouse various forces to fight for the election in the villagers" committee, thus, some forces use various measures to guarantee the victory of election such as buying votes, etc. Because in the laws regarding the grassroots elections in China, there is no definition of the election through bribery and no clear regulations on how to deal with the related cases, therefore in practice there are a lot of controversies on election through bribery all the time. The cases regarding election through bribery through the country in 2005 aroused the attention from related units and media. In order to cope with the problem, some local governments issued corresponding regulations. For example, Jinhua City, Zhejiang Province expressly stipulates that in the election of villagers" committee, the acts of using money and effects to influence the results of election is defined as election through bribery, no matter how much money in the election through bribery is used. But most places in the whole country do not define the act of election through bribery and how to cope with the elections through bribery, thus the inefficient checking on bribery inevitably leads to gradual development of election through bribery. In the Dangxi Village Case, because the voters had shown conclusive election evidence and testimonial materials on election through bribery, it might be the definitely determined as the case of election through bribery. However, while the villagers delivered these evidences on election through bribery to township and district governments for investigation and disposal, they met serious block; at the beginning, the related departments of local government refuse to accept and hear the case, and then added that it was not election through bribery according to their investigation. After the farmers had brought the lawsuit bravely, they met the obstruction from the court and government, which made this case difficult to continue. Though some leaders of Ministry of Civil Affairs and the facts obtained by the news reporter of "China Philanthropy Times", which is a newspaper affiliated to the Ministry of Civil Affairs, clearly assert that that was a typical case of election through bribery, the local government disagreed with the investigation result and handling this case firmly in consideration of its own interests; when the farmers attempted to resort to legal proceedings to solve the problem, they met the obstruction from the local court by all means, and at the very beginning, the court refused to accept and hear the case, and then delayed on purpose, not holding a hearing in time and etc. While this case was being tried, the media and the lawyers issued their considerations about the legal vacancy in the development of grassroots democracy in regard to the case and put forward some suggestions for it, 5 which was a kind of very positive response. But in another aspect, the case makes us actually feel that the lack of legal protection in the development of grassroots democracy is definitely a significant problem, if this problem was not raised and settled, the further development of grassroots democracy in China will be in a fix.
Besides the case of election through bribery in Dangxi Village, the electoral disputes and contradictions presented in other localities were also quite outstanding; the combination of the institutional loophole of with the legal vacancy became the major bottleneck of the democratic development at the grassroots level in China. In order to solve this problem, attention should not only be paid to the institutional construction of grassroots democracy, but also more to the formulation and modification of the relevant laws related to grassroots democracy, because grassroots democracy in China must be set up on the basis of rule of law, the democracy without the foundation of rule of law is an empty talk, which is unable to be guaranteed. Some scholars propose that which is better that the development of grassroots democracy shall abide by the law or not? Which is better that observing the law is beneficial to the social stability, or letting the local governments follow their bent is to keep the society" steady "via the practice of not observing the law? As a matter of fact, these questions are very easy to answer, in terms of the long-term development of China"s democracy, a set of integral legal systems must be set up, if we insist on taking the road to rule of law, we must make sure that the farmers and grassroots governments are equal in front of the law. It should not be such that the local government acts out of its own will and leaves villagers no choice but to obey. Such a view does not have any advantage to the development of grassroots democracy in China, which is also unfavorable to the road to the rule of law and the long-term development of China. Democracy and rule of law are contradictory sometimes, and this contradiction can be seen during the development of grassroots democracy, but it must be solved under the prerequisite of developing and ensuring democracy, which is a most basic prerequisite of China"s reform and opening-up policy and also the people-oriented policy put forward by the central authorities. We cannot sacrifice the rule of law for the sake of keeping the so-called regional “stability”, and this kind of sacrifice can only lead to more instability of the region in the long run, which is also disadvantageous to the long-term development of China.
Establishing a Systematic Legal Frame to Promote Grassroots Democracy
In actual life, some local governments, in order to achieve their own goal or under the so-called slogan of safeguarding the local stability and local economic development ， contain, oppress and infringe the masses" interests, which is an intolerable matter. From the prerequisite of promoting the development of local democracy, the rule of law must be held firm; however, the insistence on rule of law needs to solve the defects in our institutional design. What"s more important is to establish a more effective legal system to safeguard grassroots democracy. 6 According to the present situation, such a legal system has not been set up yet. In the "Organic Law of Urban Residents" Committee of P. R. China " and the " Organic Law of Villagers" Committee of P. R. China ", there are only general regulations on electoral procedure, without detail and intact operational procedure, though these two laws are enacted to promote the development of grassroots democracy in China, they lack the operational measures and regulations in practical work, what"s more, they are unable to provide legal basis for solving the problems in the development of grassroots democracy. What related with China"s electoral institutions most are the Electoral Law of the National People"s Congress and Local People"s Congress of the P. R. China and the Organic Law of the Local People"s Congresses and Local People"s Governments of the P. R. China , but these two laws are only effective in the election of deputies to the people"s congress and the local governments, which are not effective in the election of the grassroots autonomy organizations such as the residents" committee and villagers" committee, and they cannot be used to solve the disputes and tangles in grassroots democracy, moreover, there are so many blind areas in identifying and solving the electoral disputes and tangles in dealing with the deputies to the people"s congress and the leaders of the government that they need revising in an all-round way. Likewise, in the Organic Laws of Villagers" Committee and Residents" Committee, there are no definite regulations on whether to ascertain criminal responsibility on the serious violator of the electoral law, however, the “Crime of Undermining Election” stipulated in Article 52 of Electoral Law and Article 256 of Criminal Law are only direct against the election of deputies to the people"s congress and that of leaders in the governmental departments, and they are unable to ascertain the criminal responsibility on the serious illegal actors in the election of villagers" committee and residents" committee, therefore the relevant contents of these laws are not suitable for the election of the grassroots democracy either. In the “Administrative Procedure Law of P. R. China", though it stipulates that the citizen may sue the government, however, while the citizens meet the contradictions and difficulties in the development of grassroots democracy, they may bring administrative litigation, but the link of receiving the case is beset with difficulties.
Several years ago, incidents occurred that some local governments illegally replaced the elected director of village committee. Related party brought up the case or administrative litigation to the corresponding department of the government, demanding replacing members of villagers" committee by the government to be confirmed as illegal, but most courts decided not to accept and hear the case; even though the concerning party"s prosecution was received, the plaintiffs" prosecution were mostly dismissed via the reasons such as the prosecution not" included in the acceptance scope of administrative litigation in the people"s court" and many other reasons. One of the two administrative cases concerning Dangxi Village, while requiring the court to cancel government"s illegal administration behavior, encountered the same destiny. There were some cases that the grassroots had won the lawsuit indeed, 7 but they only accounted for very small proportion. These situations not only involved how to understand and properly apply the Administrative Procedure Law correctly, but also related with how to make use of administrative litigation to safeguard the healthy and orderly development of grassroots democracy. Though the Administration Procedure Law stipulates that as to the cases that indicting the government"s administrative non-performance, the principle of "the inversion of burden of proof" shall be employed, i.e. the respondent itself shall prove that it has already made the concrete administrative behavior, aiming at exempting the administrative litigation plaintiff"s evidential burden while the disadvantageous plaintiff cannot afford the proof, but in the judicial practice, this kind of regulation has often been the basis and excuses employed by the courts" tacit consent for the respondent to supplement its evidence. The administrative lawsuit of Dangxi Village is a very good example, when the farmers sued the local government"s administrative non-performance, the court stalled for time on purpose, which enabled the respondent to have sufficient time to supplement the files, backdating the time so as to prove that they make the administrative behavior, which would make this administrative lawsuit end up in nothing definite finally. Though this litigation changed the local government from non-functional to functional – indeed a kind of progress, this kind of administrative performance shall be made in accordance with the law, not forced by filing lawsuit by villagers because of its illegal administration. So, when the villagers of Dangxi Village initiated the second administrative lawsuit against the illegal concrete administrative behavior of the government, the local court made a wrong decision by the excuse that the case was "not included in the acceptance range of administrative litigation of the people"s court ", which not only misunderstood the acceptance scope of administration litigations stipulated by the Administrative Procedure Law, but also self-contradicted with its behavior that it accepted and tried the first administrative case. Finally, according to the provisions of the " Civil Procedure Law of P. R. China", only when disputes arise from the voter"s qualification, could a suit be brought to the court in accordance with the special civil procedure, however, the electoral disputes or whether the election is effective is not included in the range of the special civil procedure lawsuit, and the voters are unable to bring a suit before the court on the disputes or tangles in the electoral procedure at all. Some relevant legal provisions stipulate that these kinds of disputes can only be dealt with by the Electoral Commission at correspondent level, in fact, there exist very great disadvantages. If the focus of the dispute is to query the fairness of the Electoral Commission in the election, obviously this kind of institutional design boasts of great defects.
Therefore, in terms of the relevant legal contents concerning the grassroots democracy in China and the practical process, except the lawsuit about voter"s qualification, all the electoral courses lack clear legal provisions, let alone to initiate judicial judgment over the procedural disputes, which is the main reason why the electoral disputes increased in the development of grassroots democracy in China in 2005. The disputes always could not be solved after the elections for long, which has become a significant factor that restricted the development of grassroots democracy in China, therefore, it is necessary to consider the renewing or amending some of the relevant existing laws so as to make them meet the demand of democratic election at the grassroots level in China, and promote and safeguard the further development of the grassroots democracy in China.
Because of these, we need to construct a set of comparatively systematic legal frames, which should be revised and supplemented from the existing law legal frame, and new laws are needed to be formulated so as to the meet the demand of the present democratic development at the grassroots level in China now. The following are some of major points I considered:
1. Revising the Existing Organic Laws of Grassroots Democracy
The existing laws involving development of grassroots democracy in China are mainly the Organic Laws of the Residents" Committee and that of the Villagers" Committee, and these two laws are the norms of principle that stipulate the establishment and autonomy of the urban residents" and rural villagers" autonomic organizations. Several years ago, the Organic Law of Urban Residents" Committee had been considered amending all the time, and at present the basic frame of the newly-amended legal draft is ascertained, increasing a large number of regulations concerning the election of residents committees, and strictly standardizing the contents of procedures and legal remedies for the election of residents" committee. It is believed that the amendment of the law will exert an important influence on the election of the urban residents" committee in the future, and play the role of certain standardization. After the Organic Law of the Villagers" Committee was issued in 1987, it was once amended in 1998. According to the development of present practice, a lot of personages advocate further revising the law and making concrete regulations on the electoral procedure for the election of rural villagers" committee. But seen from the status quo, this request is hard to realize, therefore, the amendment of the Organic Law of the Villagers" Committee has being considered for long and corresponding revision procedure was started up in 2005. The amendment of this law is mainly aiming at the difficult problem facing the development of rural democracy at the grassroots level at present, and the supplemented contents mainly concern the electoral procedure of the villagers" committee and legal remedies for it. It is believed that such amendments will influence and help the election of villagers" committee to some extent.
Standardizing the electoral procedure at the grassroots level through amending the two organic laws concerning the grassroots autonomic organizations, judging from the status quo, is not only a feasible but also a better route. As far as rural election is concerned, the foresaid measure may well standardize the electoral procedure of the villagers" committee, especially the additional contents of legal remedies regarding the election will improve the present predicaments in the rural election, enabling the concerning participants of election to enter the track of the lawsuit directly according to the legal provisions, thus the local government"s intervention in the electoral procedure will be contained.
2. Formulating a Uniform Electoral Law
Besides inserting the content of electoral procedure into the Organic Laws of the Residents" Committee and that of the Villagers" Committee, on the basis of which the uniform normative electoral law is considered formulating in the whole country.
We can analyze the reasons from the following aspects:
First, the development of grassroots democracy in China is not merely a matter concerning the villagers" committee in rural areas and the residents" committee in the city, but the range of the electoral reform is extended much more. The ordinary masses in a lot of places began to get involved in the election of deputies to the people"s congress at the basic level actively in 2003, and a lot of independent candidates emerged both in the country and city which also produced a lot of electoral disputes. These electoral cases prove that the election reform in the deputies to the people"s congress has already begun in China and the existing electoral law does not meet the need of the development of grassroots democracy in China, which should be further reformed. The Electoral Law and the Organic Law were amended by the National People"s Congress in a petty scale in 2004, but far from meeting the need of the reform. Secondly, the reform of trade union in China has already been started up too, the important content of which is that the leader of trade union shall be directly elected by the workers. But there are no laws or relevant legal provisions standardizing the election of trade union in terms of law, thus, is it of necessity to formulate a special electoral law for the trade union? In addition, the inner-Party election has already been extended constantly, and the competitiveness is being strengthened progressively. Some places have already begun to experiment the direct election of the township party secretary, and the number of Party members participated in the vote is already very large. But how to implement the inner-Party election is not expressly regulated in the Party Constitution, thus relevant laws shall be referred to. Therefore, in terms of the reality of electoral reform in China at present and the development trend in the future, the formulation of a uniform electoral law is of great significance, through which the electoral procedure of various civil servants in China may be unified, thus, it will be suitable for the electoral activities held by different organizations. On the contrary, if there is not a uniform electoral law, the self-independent electoral laws will certainly cause confusion, therefore, a lot of electoral reforms in progress in China may go wrong, which will influence the development process of the reform directly.
Second, the present elections at the basic level in China are actually organized by two different systems that is, the people"s congress and the civil administration department, and their electoral standard used is various, so are the local election standard. In terms of the prospect of electoral reform and development in China, a permanent neutral electoral organization should be established to unify the grassroots election in China, including the elections of grassroots organizations both in rural and urban areas, the election of deputies to the people"s congress at the grassroots level, trade union, the Party organizations at the grassroots level and the elections of other social organizations, such as women organizations, schools, and etc. The method that may change this kind of situation is to establish a uniform electoral organization, unify all kinds of elections under the leadership of the said organization in China, and formulate uniform electoral procedure and legal provisions, which may be very beneficial for the promotion of grassroots democracy in China.
In view of two respects mentioned above, it is very necessary to make a uniform and standardized electoral law. It is not only unnecessary but also impossible to formulate a separate electoral law or organization law for every election. From the viewpoint of development of grassroots democracy, there should be a uniform electoral law, which can be considered being called the " Electoral Law of the Civil Servant of P. R. China ", or the " Electoral Law of P. R. China ", whose content may include the election of deputies to the people"s congress, government officials, the mass organization at the basic level, trade union, faculty and staff and those inside the political parties, and etc. In fact, from technological aspect, it is not difficult to formulate a uniform electoral law, in which the experience of the elections at the basic level having accumulated for many years can be absorbed, and the imbalances of the electoral development processes all over China may be avoided by way of a uniform procedure exploited to implement the election of all the civil servants, and that would be beneficial to the development of China"s democracy.
3. Necessary to Amend and Perfect Relevant Laws
According to a large number of legal issues involved in the development of grassroots democracy in China, it may be inferred that they mainly include the legal remedies for the disputes arisen from the elections, the concrete standardization of electoral procedure, the definition of illegal electoral behavioral and relevant punishment, and etc. In the current legal text, some of these issues have not touched upon basically, even if they were touched upon, they were very simple. The following are some of the basic thoughts:
A lot of incidents undermining the elections took place in China"s election, for instance, taking the ballot box away in the course of voting, not using the way of counting the ballots publicly, spending money buying ballots and so on, while the existing laws meet these illegal behaviors, they sometimes can not solve these issues at all. Although there are many warning provisions aiming at the electoral undermining behaviors in the electoral measures formulated by the local authoritative agencies, they do not have corresponding concrete legal provisions to deal with the illegal behaviors. For example, carrying the ballot box away as described above is undoubtedly accorded with the constitutive requirements of crime of undermining election that provided in the criminal law of our country, but the criminal charge in the criminal law only applies to illegal activities in the election of deputies to the people"s congress, as to the illegal actors in the election of villagers" committee and residents" committee, even if their behaviors are of a serious nature, they cannot be prosecuted for criminal responsibility in accordance with the law. Therefore, it should be considered that the applicable scope the crime of undermining election in criminal law shall be extended from the election of deputies to the people"s congress to that of the villagers" committee and residents" committee, and expressly define that the two illegal undermining behaviors shall bear criminal responsibility. The provisions regarding the electoral lawsuit in the present civil procedure only include the case of voter"s qualification that tried through special procedure, 8 while the Electoral Law expressly stipulates that if one has different opinions about the voters" list having announced, one may appeal; if one refuses to comply the final appealing decision, one may go to the people"s court, 9 but the Organic Laws of Residents" Committee and Villagers" Committee do not have such corresponding regulations at all. Though a lot of local courts accepted and adjudicated some lawsuits regarding the qualifications of voters in the election of villagers" committee and residents" committee, however, most of the similar lawsuits were blocked out of the court room in the name of not falling within the scope of the people"s court. In addition, all the other electoral disputes cannot enter judicial procedure because of no law to regulate it. While the disputes concerning whether they are illegal or just arise in the course of election or after it, the judicial procedure should be considered. If we want to solve the electoral contradictions and redress the illegal elections via the special civil procedure to adjudicate the electoral disputes, the electoral litigation scope is of great necessity to be extended to the whole course of election, otherwise, the illegal electoral behavior will definitely become more and more rampant because of not bearing corresponding responsibility for the illegal acts, which will cause the masses of voters to lose confidence because of their suspicion of the fairness of election while the electoral disputes are not tried. In the present election of the grassroots organizations, most disputes evolved from the illegal intervention by the local governments or their harborage and connivance, and they utilized the power to control and manipulate the election, which caused the voters to lodge complaints against the local governments. The law involved in this respect mainly concerns the Administrative Procedure Law, though the voters can bring administrative litigations against the incompetent or unjust disposals of the government departments on the electoral issues, because the route of administrative litigation is not always smooth and the inherent diseases of the judicature mechanism, the voters always lose the lawsuits. The amendments of the Administrative Reconsideration Law and the Administrative Procedure Law are still not very clear, whereas keeping judicial independence and judicial fairness, and redressing the illegal administrative behaviors of the government by observing the law feasibly will help the government from getting involved too much into the electoral activities and tend to administrative neutrality gradually, which will be favorable to the change of the government"s functions, the creation of a government ruled by law and the development of democracy at the grassroots level, without any harm.
From the opinions summarized from former practice described above, it can be inferred that they not only involve several existing laws, but also involve how to further deepen the reform of the judicature mechanism as well. In fact, laws such as the Criminal Law, the Civil Procedure Law and the Administrative Procedure Law of our country and so on all have been during the process of considering revising, if the above-mentioned opinions can be considered synthetically, it will definitely play a positive role in the healthy and orderly development of grassroots democracy in China.
4. Necessary to Formulate New Laws
In the practice of development of grassroots democracy at present exists an important issue, that is, on one hand, the government is pursuing grassroots autonomy including that of the villagers" committee and residents" committee vigorously, on the other hand, we can see that a lot of township governments and neighborhood offices interfere much in the grassroots autonomy, which make the grassroots autonomy difficult to operate. Though it seems that greater conflicts in the grassroots autonomy of the cities did not appear, in fact that it is hard to realize. According to the reality, the fiercest conflicts at present appeared in the country, and most of the issues regarding the grassroots democracy arose from the grassroots" autonomy and the intervention of the township governments to a high degree. In a situation that the government is strong while the masses are weak, this kind of governmental intervention is of no good to the development of autonomy at the basic level in China, on the contrary, it will make the grassroots autonomy difficult to go on instead. Because of the intervention of the grassroots governments, it also make these governments involved much more interests of the grassroots too, for example, some township governments charged the farmers arbitrarily and practiced illegal land trade, and etc. One of the most important measures concerning the conflict settlement is to strictly implement autonomy in the country in line with the provisions of Organic Law of the Villagers" Committee. But it is not enough to boast of the Organic Law of the Villagers" Committee in the long run, even on the basis of the development of China"s democracy in the future, a law concerning the relationship between the township government and the villagers" committee should be considered to be established. The said law should strictly define the scope of their own official duty between the villagers" committee and the township government, and then fix them carefully via legal provisions. Only by making use of legal provisions could prevent the intervention in villager"s autonomy by the township government, and then make the villager"s autonomy come true.
If is not merely in view of the country, from a more long-term angle, especially in consideration of the arrangement between grassroots governments in China in the future, a" Local Autonomy Law of P. R. China, " may be considered to formulate, or at present stage it may be called the "Autonomic Law of Local Masses Organization". As the enlargement of the autonomic range in China, it will be adjusted afterwards. This autonomic law should expressly limit the functional ranges of the villagers" committee, residents" committee and the government at a higher level via the legal provisions, thus the authentic autonomy of the masses organizations at the basic level may realize. Such an autonomic law can only consider the autonomy of urban masses and that of the rural masses and their relationship with the grassroots government at present, in which some new contents may be added as the local autonomy expands gradually. From the angle of China"s long-term development, the expansion of local autonomy is inevitable, therefore the formulation of such a law is to explicitly regulate the authorities and responsibilities of the governments at all levels, if not drawing a clear bound between them in form of the legal clauses, the local autonomy is unable to realize at all. In addition, in the development of China"s local autonomy at present, the residents" committee and villagers" committee are only masses organizations, thus, in some people"s view, the autonomy is only the masses" autonomy but not the autonomy of the governments, as a consequence, a lot of people do not understand how China deals with the local governments" autonomy. But from the angle of the development of local autonomy, it is possible that some local governments at the grassroots level may come to autonomy in the future. Accordingly, formulating a local autonomic law might play a better role than formulating a law concerning the relationship between the township government and the villagers" committee in promoting grassroots democracy in China and local autonomy in the future.
In 2005, there were a lot of issues exposed in the development of grassroots democracy in China, among which the biggest problem was the serious vacancy of our legal system, that is, legal vacuum formed in development of grassroots democracy. From the angle of promoting the development of grassroots democracy, without the guarantee of law, there would be no development of grassroots democracy at all; as a result, the legal vacuum must be solved on the basis of the present practice. In fact, the practice of grassroots democracy in China has already tentatively put forward the legal safeguard systems needed; as a result, the reform and perfection of current legal systems may realize the necessity of safeguarding the democratic development at the grassroots level. Theoretically, it is not very difficult to establish a legal system to safeguard the development of grassroots democracy, whereas the difficulty lies in the adjustment of a large number of interest relations in the establishment of a legal system, however, during the adjustment, the masses, in a politically inferior position, are difficult to raise their voices, but they need such a legal system to safeguard their rights. In comparison, the powerful governments at the grassroots level, in order to protect their vested right, may not need such a legal system. Therefore, under the present difficult situation, in order to promote the reform of rule of law, the central government, if wants to establish a legal system that can safeguard the development of grassroots democracy, needs to show its courage in the electoral reform, its foresight and sagacity as well. In the long run, this would be beneficial to the development of grassroots democracy in China and social stability.
＊ This essay is the chapter of macro analysis of grassroots democratic development in China in 2005, first appeared in Li Fan ed., “Grassroots Democracy in China 2005” , Intellectual Property Press, June, 2006, Beijing.
1 All the cases cited in the article can be found in this book, though some cases are not narrated particularly in it, there are many other sources such as articles and reports can be made as the references.
2 Some of the situations sourced from our survey, and partly referred to Wang Xinhai"s article, The Farmers" Burden Are Still Heavy, in Forum of Township, December 5th, 2005.
3 Article 16 of the Organic Law of Villagers" Committee of P. R. China provides that more than one-fifth of the voters of this village can jointly bring forward recalling the members of the village committee, and the recall request should put forward the reasons for the recall, the recalled member of the villager"s committee have the right to defend for himself or herself. And the villagers" committee shall hold villagers meeting in time to vote on the recall motion. The recalled member of the villagers" committee shall be approved by more than half of the villagers having the right t vote.
4 At that time, these voters put forward the recall request to the people"s congress of Fengtai District, but the people"s congress did not give a reply until 2005. Li Fan ed., Grassroots Democracy in China 2004 , Intellectual Property Press, pp.106-113.
5 See the relevant articles in this book in regard to the related report and researches.
6 The content in this section referred much to Zhou Meiyan"s Electoral Transgression, Supervision and Litigation , in Li Fan ed., The Reform of China"s Electoral Institution , Shanghai Jiaotong University Press. Some parts in this section were corrected in accordance with Zhou Meiyan"s suggestion, and here I should make a cordial acknowledgment to her.
7 According to the report of People"s Daily , September 5, 2001, Wang Shifeng, a resident of Huai"an, Jiangsu Province, was elected as director of Wangzhuang Village of Wangying Town, Huaiyin District in the villagers" meeting in November 1998. On June 18, 2000, because of the adjustment of administrative sections, Wangzhuang Village and Zhangzhuang Village merged and Wangzhuang village was reserved. Wang Shifeng still acted as the original post; however, three months later, he was dismissed by the Party Committee and the government of Wangying Town without any explanation. Therefore, Wang Shifeng sued the Wangying Town government for illegal administration. The court concluded that the respondent Wangying Town government"s adjustment behavior was lawful in accordance with the official and written reply of the people"s government of Huaiyin County. The respondent government shall guide the villagers" committee after the adjustment, and organize the villagers to elect new the director, deputy-directors and commissioners of the villagers" committee in time, and shall not designate, appoint or replace the members of the villagers" committee. The declaration of cancelling the directorship of the villagers" committee of the plaintiff Wang Shifeng by the officials from the respondent government was illegal. Thus, the court ruled the judgment of first instance that the respondent Wangying Town government"s concrete administration behavior, the declaration regarding the cancellation of the directorship of the villagers" committee of the plaintiff Wang Shifeng, violated the laws in line with Article 11 of the Organic Law of Villagers" Committee of P. R. China and Article 54 of the Administration Procedure Law of P. R. China.
8 Article 164 of the Civil Procedure Law of P. R. China provides that while the citizen refuses to obey the appealing decision concerning the qualifications of voters made by the Electoral Commission, he or she may bring it to the court at the basic level in the constituency five days before the date of election.
9 Article 28 of the Electoral Law provides that anyone who has an objection to the roll of voters may appeal to the election committee. The election committee shall make a decision on the appeal within three days. If the appellant is not satisfied with the decision, he may bring a suit in the people"s court at least five days prior to the date of election, and the people"s court shall make a judgment before the date of election. The judgment of the people"s court shall be final.
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