Aug 10, 2012
Shuang Bin

Independent candidate: is it legal or not?

In 2011, a unique phenomenon emerged in China: “Independent Candidates”, which brought numerous debates among scholars and ordinary people. As they actively participate in various levels of elections, increased violence against them and barriers set to block them from getting involved have called people to ask: is it legal to be an Independent Candidate?

Many cases in the last few years have demonstrated the challenges Independent Candidates face along their journey to be elected. The first barrier they have to overcome is being confirmed as a “Deputy Candidate.” In the Constitution of China, every adult citizen, without being deprived of political rights is entitled to vote and to be elected. It has been set in the Election Law that an individual who is not nominated by any organization or work unit, but still wants to become a candidate, must collect at least 10 signatures from voters from the same constituency to get nominated. In order to become a legal Deputy Candidate, they have to be further confirmed by the election committee. However, it is not as clear and simple in local practice. Rules and decrees can incredibly complicate the process to obtain official recognition. Some constituencies release the registration date at the last minute; some require the candidate to be a Party member. In some extreme cases, to prevent them from participating in the election, local authorities simply label them as inciting subversion of the state’s political power and limited their freedom from the very beginning. Even recognized as Deputy Candidate, their campaigns were often harassed or forbidden.

Scholars and Independent Candidates argue that those local authorities are violating the Constitution. However, through the whole process from registration to campaign, to the Election Day, Election Law doesn’t provide much content to support either Independent Candidates or the behavior of local authorities we have just mentioned. It instead leaves huge room for both to interpret the law in their own ways.

In China, many things should be understood through “national conditions” (国情). Part of it is the will from the top. People therefore have to guess, rather than learn from the legal book, to draw the line between legal and illegal. In this case, the signals for Independent Candidates are really mixed. Different organizations and different high officials give explanations that often conflict with each other.

In June of 2011, it was clarified by the Legislative Affairs Commission of the National People’s Congress (NPC) Standing Committee that “There is no such a thing as an ‘independent candidate’, as it’s not recognized by law.”[1] Its person in charge stressed that according to the law “one should be first nominated as Deputy Candidate and then confirmed as official Deputy Candidate in due legal procedure.” Then the China Central Television (CCTV) and other major news agencies covered the news, which brought about a debate over whether “independent candidate” is just a wrong term to use or illegal in its nature. The Legislative Affairs Commission’s clarification is ironically vague, as it doesn’t state individuals are banned to actively become a Deputy Candidate, in contrast to the traditional path of organizational nomination. However, it apparently implies their unsupportive attitude, representing a stance from the top. On social media, Netizens criticize that the tricky wording statement is designed to scare people, but doesn’t dare to directly violate the Constitution. However, it certainly projects its impact to the local level. Such an interpretation becomes an excuse for local authorities to block Independent Candidates from participating in elections.

Adding to that, Wu Ying’ai, the Minister of Justice pushed this stance forward. In a law book edited by Wu, called Q&A of PRC’s National and Local People’s Congress Representative Election at Each Level, which gave a specific explanation and suggestion— for Deputy Candidate planning to campaign on his/her own, relevant organizations should persuade them not to or stop their campaign activities. It further argues that it could facilitate the work of introducing candidates to voters being carried out in an orderly and more organized manner, which is therefore in the interest of developing the extensiveness of democracy and ensuring the voters’ well-ordered election participation.

Nonetheless, other signals appear to color the picture, which is more encouraging but also makes the whole issue more confusing.

On the 13th of June 2011, an article published on the newspaper Study Time held by the Central Party School of the Communist Party of China(CPC)[2] argues against the Legislative Affairs Commission. As expressed in the article, a citizen’s legal right to be “nominated” should be safeguarded in practice is amply emphasized. To soften the tone, it did criticize the use of the term “independent candidate” as not appropriate, since it implies other candidates are not independent. Wang Changjiang, a professor from the same school, also joined this camp by expressing that government should face the trend of public participation into politics and start building its democracy. He argues that within the Party, many people’s mentality remains unchanged : the emerging of Independent Candidates must be the result of the penetration of western opposition power. Nonetheless, they failed to notice that with the progress of the economy, people’s awareness of the link between their daily life and politics as well as individual rights have been promoted enormously, especially in the era of social media.

Regarding the motivation to become Independent Candidates, some top governors obviously have acknowledged both possibilities. Yu Zhengcheng, CPC party chief in Shanghai, made a speech in Shanghai Jiao Tong University and classified Independent Candidates into four categories:

  1. Sincerely wish to monitor the work of CPC and government. They should be supported;
  2. Sincerely wish to monitor the work of CPC and government, but by extreme means. Also should be supported;
  3. Seek the limelight and want to be recognized. Not a big deal;
  4. Want to topple China’s current system/institutions and push China to follow western political institutions.

He, however, didn’t really provide direct suggestions for dealing with the last category. But it is clear, referring to the context of speech, that China doesn’t welcome such Independent Candidates and is very defensive to prevent political “Westernization.” Looking at the first two categories, Yu promises a much larger space for ordinary people’s active participation in elections, compared to the Legislative Affairs Commission and the Ministry of Justice. In fact, many Independent Candidates made it clear that their purpose is calling for public awareness of individual’s rights. Some of their campaigns focus on informing people about the current legal system and potential space to safeguard rights and interests based on current law. For those, they accept and even have faith in the current political system and want to use the means permitted by the system to improve the society. What is not clear is how to draw the line between the so-called sincerity and opposition. This is a great gray zone that can be arbitrarily judged by individual’s “political will” rather than by behavior, which could easily be forged into a weapon whenever local authorities feel threatened by this monitoring tool.

The government certainly has been aware of the threat of an emerging competing group and correspondingly made some progresses to advance its own capacity as well as the procedure of election. In the past, most voters have not even heard of their Deputy Candidates, yet still have to vote among strange names. To respond to that, in 2009 the central government issued an announcement[3], clearly stating that if the condition is permitted, the village election committee (though much different from People’s Congress Election) should organize candidates to meet voters, to introduce their plan of rural governance and commitments and to answer the questions concerning local villagers. However, it forbids soliciting votes privately by either the candidate or his/her proxy. In the last version of the Election Law, small changes on wording are worth noting: it stresses the Election Committee should organize candidates to meet voters by changing the word “can” to “should”. Yet, it added “upon the request from voters” following the sentence, which allows flexible interpretation from local authority to get around the rule. In general, it is still a positive sign to encourage the involvement of ordinary people.

Despite individuals being entitled to contest in elections, the extremely vague law doesn’t promise the right to campaign. This challenge is becoming the second most likely barrier for Independent Candidates to be elected. Local authorities create their own decrees and limitations on the details of the election. Some activists may survive in the process of being confirmed officially as Deputy Candidates, but they may face being silenced after that- not allowed to give speeches to their audience or show posters containing their background information or governance plan. Their freedom might also be limited by the local security forces, sometimes for few days, sometimes for years. Usually individual candidates find nowhere to file their complaints.

Given the mixed signs above, it is also wrong to assume the space for Independent Candidates are equally small across the whole country. Some places are performing much more hopefully than others. For example, in Yunnan and Zhejiang Provinces, local elections are more open to Independent Candidates and even officially support their participation and campaigns. While in Jiangxi and Shaanxi, the local governments are nervous about this emerging phenomenon and always arrange “talks” with individual candidates.

All in all the issue of “Independent Candidates” is not a matter of being recognized as appropriate officially, it is just a title referring to the kind of people who individually have the will to represent voters who are supported by more than 10 voters. The debate should not go beyond the issue of legal language, because it is clear that the right to be elected is written in the law. However, the official response is more of a reflection of attitudes from the top Party leaders which certainly matters more than the language itself. It is reasonable for local leaders to fear being monitored and ousted from their positions which could bring them and their family intangible and tangible benefits; it is also reasonable for the top of the Party to feel anxious that opening this door could lead to further and deeper political reform which they would easily lose control over. On the other hand, some argue that allowing Independent Candidates to contest is a great channel to lift a bomb of social discontent. It raises a question: Can the Party create a new balance to satisfy ordinary people’s desire to have real representation in political decisions as their socioeconomic interests are diverging, while at the same time keep maintaining the privilege power for elites. At this stage, I feel most Chinese tend to believe Beijing is capable enough of managing that balance, though it is tough.

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