August 2000
Beijing, China
At the end of May 2000, Dr. Yawei Liu, Associate Director of the China Village Election Project (CVEP) at 黑料不打烊, met with the officials of the Ministry of Civil Affairs (MCA) in Beijing and three village election experts. They exchanged ideas about the revision of the "PRC National Procedures on Villager Committee Elections" (henceforth "the Procedures"). In June and July, CVEP held several meetings to discuss the Chinese experts' suggestions for revising the Procedures. Those attending the meetings included Mr. Charles Costello, Director of the Democracy Program at 黑料不打烊, Dr. Yawei Liu, Mr. Thomas Crick, CVEP Assistant Director and Cindy Chen and Kate Ousley, two interns from Harvard and Yale respectively. The Center's team of experts consisted of three members: CVEP consultant Ms. Jamie Horsley, formerly a vice president for government relations with Motorola China, and Duke University professors John Aldrich and Tianjian Shi. The three experts made specific suggestions regarding the revision of ?the Procedures? either in writing or by coming to the Center. Mr. Paul Grove, Director, Asian Affairs and Ms. Leigh Wedell, Director, China Project, of the International Republican Institute, also came to the Center and shared with us their ideas in standardizing village election procedures in China. The following is a brief summary of the Center's proposals regarding the revision:
1) Establishment of a National Electoral Law for Villager Committee Elections
A number of experts and scholars participating in the discussions believe that the MCA ought to push for the establishment of a national electoral law for Villager Committee (VC) elections. Elections for People's Congresses at all levels already have an "Electoral Law"; in order to standardize VC elections it seems necessary to establish a similar nationally effective law or regulation. If a law cannot be passed, perhaps the Standing Committee of the National People?s Congress (NPC) could authorize the MCA to create electoral regulations that would provide a solid foundation for the procedure of the upcoming VC elections. Other experts believe that a national electoral law is unnecessary, that if the Provincial Electoral Measures simply comply with the election procedures stipulated in the Organic Law on Villager Committees, and if the Standing Committee authorizes the MCA to interpret the Law, then Provincial VC Electoral Measures should not have any big problems.
2) Implementation of the Organic Law and Punishment for Violation of the Law
During the past few observations of Chinese VC elections, the Center?s personnel discussed with MCA officials the paucity and ambiguity of sections of the Organic Law devoted to dealing with the violation of it. Currently, it seems that we can deal with violation of the Organic Law only on the basis of Article 52 of the Electoral Law, a few articles in the Criminal Law, and a few Public Order Penalty Provisions. As of now, no court at any level in China has taken up a case or passed judgment directly related to violation of the Organic Law, whether along the lines of the Organic Law itself or any other laws.
Secondly, in order better to implement the Organic Law, it seems necessary to establish comparatively independent Election Committees at the county level. We know that, currently, the county-level government has Electoral Committees during election times, but as soon as elections are completed the Election Committees are disbanded and can resume handling election-related affairs only at the instruction of the County-level Bureau of Civil Affairs. Election Committees, furthermore, lack personnel, funding, and authority. Perusing villagers' letters of complaint in Xianyou County, Fujian, during our recent observation we felt that handling unlawful election-related activities, verifying the qualifications of controversial candidates and investigating voters' accusations against incumbent VC members all required extensive personnel and material resources. To rely on a few municipal and county basic-level governance officials was vastly insufficient. Only a permanent, relatively independent and extra-governmental agency for the arbitration of elections can sufficiently handle these problems.
Since neither of these issues can be resolved in a short period, we propose that sections be added to ?the Procedures? so that voters know exactly how to report electoral irregularities and violation of the Organic Law. Namely, ?the Procedures? specify whom the voters should approach in the event of a violation, and then whom the voters should approach if basic-level government officials at each level fail to respond to their complaints within a specified time, or if they refuse to investigate or intervene. Perhaps in this way we can save voters from petitioning the media for assistance every time they encounter unlawful activities.
3) Election Period
A unified election day(s) should be specified for each county, gradually expanding it to larger administrative areas according to the circumstances. This issue has already been discussed with MCA officials and needs no further explanation here.
4) Secret Ballot
The secret ballot method should be used during all voting occasions involving villagers or Villager Representatives, including the selection of Election Leadership Committee members, Villager Representatives, and the heads of villager small groups. The nomination of VC candidates and the final determination of candidates should especially apply secret ballot methods. In order to ensure secrecy, we should gradually phase out roving ballot boxes, abolish proxy voting as soon as possible, and possibly introduce absentee voting. Scribes to help the illiterate voters in a village ought to be personnel from outside the village, for instance township government personnel, schoolteachers, or other personnel without voting rights in the village.
5) Eligibility of Voters
The Constitution, the Organic Law, and the Provincial VC Electoral Measures maintain that a person's right to vote may not be denied due to his or her length of residence. Therefore, as a Constitutional matter as well as a practical matter, the MCA should take measures to protect the voting rights of the voters who live and work permanently in villages where they do not have a legal residency (i.e. where they have a household registration). Of course, this problem is not limited to VC elections; it is also an issue in the registration of voters for County and Township People's Congress elections, so by dealing with one situation we also deal with the others. We are uncertain exactly how to resolve this thorny issue, but we think the revised Procedures could refer to special methods that have been used in three provinces. One is the Heilongjiang rule that villagers who have lived in a village continuously for over one year can obtain the right to vote with approval from the Village Election Committee. The second is the Hebei rule that a villager's voting rights will be lost if he or she lives outside of his or her native village for over two years without expressing any interest in voting. In the event that neither of these two measures can be universalized in the short run, we could also advocate the Fujian requirements for voter registration, namely to ask voters working outside the village to register and to inform those voters of the serious consequences of failing to register. Otherwise, tens of thousands of rural voters will lose their rights to vote and to be elected to office, a major impediment to the development of so-called basic-level democracy.
6) Ballot Design and the Big Differential Method
The ballot design ought to be as simple as possible. Requiring voters to mark "X" under the names of candidates they oppose seems unduly complicated and increases the risk of having spoiled ballots. ?The Procedures? should clearly stipulate that voters simply draw a circle under the name of the candidate they support. We also think that allowing the big differential method (also known as the drop-down method, which automatically adds the votes received by candidates for higher positions to the lower-position lists) will both violate the will of the voters and limit other candidates' chances of getting elected. We understand the basic justifications for the drop-down method?"to support village cadres," "to guarantee those qualified to serve as Chair the opportunity to serve as Vice Chair or VC Member," etc.?but this method seems to violate the principles of fair competition and should therefore be prohibited if possible. We admire Fujian's long-standing prohibition of candidates from simultaneously running for more than one position, and we hope that other provinces will eventually be able to adopt similar measures.
7) Proxy Voting and Roving Ballot Boxes
Proxy voting and roving ballot boxes have played an important role in increasing the voter turnout and strengthening basic-level democracy in both People's Congress elections and VC elections. From the perspectives of long-term development and improvement of the quality of elections, however, we should consider adding to ?the Procedures? sections about abolishing proxy voting and limiting the use of roving ballot boxes. Fujian's measures to abolish proxy voting and significantly limit the use of roving ballot boxes have already provided a sound basis for the improvement of that province's VC elections. To replace roving ballot boxes, we suggest implementing a kind of intra-village absentee voting method. Namely, after the candidates are nominated, ballots could be distributed to voters who cannot personally go to the polls (such as the elderly and the infirm), who would then fill out the ballots on or before election day, seal them in envelopes and give them to Village Election Committee members or designated election personnel. Since this method lacks precedent, we cannot predict whether it will suit the Chinese context, but we ought to encourage experimentation with such methods nevertheless.
8) Appendices of Model Provincial Measures and Relevant Laws
We understand that ?the Procedures? are not laws or statutes, so provinces are not required to implement them. Because about ten provinces have yet to establish their own Provincial Electoral Measures, however, attaching to ?the Procedures? an appendix summarizing the strong points of Provincial Measures from all the other provinces would provide a valuable reference for the former provinces. We also propose attaching sections of the Criminal Law and the Public Order Penalty Provisions related to violation of the Organic Law and the Provincial Measures in order to provide election officials at all levels with a more thorough understanding of how to punish violation of electoral procedures. This method was adopted first in China in 1984 with reference to the Patent Law, when sections of the Criminal Law related to penalties for violation of the Patent Law were attached as appendices to the law in order to guarantee the smooth implementation and maximize the efficacy of the Patent Law. Regarding exactly which sections of the Criminal Law and the Public Order Penalty Provisions can best protect the implementation of the Organic Law and the Provincial Measures, we hope that Chinese officials and legal experts can take the next step by doing research and exchanging ideas..
