Chinas Constitutionalism Debate Content, Context And Implications Notes

China’s Constitutionalism Debate: Content, Context And Implications

• In 2013, a debate on constitutionalism erupted between liberals advocating better implementation of China’s Constitution and anti-constitutionalist voices claiming that this would harm the political order and the reform project.

  • However, the anti-constitutionalist position was closely aligned with the new Politburo Standing Committee’s agenda, which continues to reject the notion of a law-based political order and institutionalization of fundamental relationships between the Party, the state and citizens.

  • This has significant implications for the direction of Chinese legal reforms and related scholarly understandings.

• In January 2013, protests broke out at a well-known pro-reform newspaper, the Guangzhou-based Southern Weekend (Nanfang zhoumo 南方周末), after provincial censorship, authorities allegedly altered a critical New Year’s message without the editors’ knowledge.

  • A day later, the website of the reform-oriented journal China Through the Ages (Yanhuang chunqiu 炎黄春秋, hereafter YHCQ) was closed down

• Both offending New Year’s messages had called for constitutionalism (xianzheng 宪政).

  • These events initiated a broad, nationwide debate that lasted for months.

  • On one side were pro-constitutionalist voices demanding the implementation of China’s current Constitution.

  • Their anti-constitutionalistopponents held that constitutionalism is an alien concept that is dangerous for China’s reform trajectory and political stability.

  • This debate did not merely involve academic points of theory but also brought to the fore questions concerning the legitimacy and sustainability of China’s public legal order

• The Party leadership felt forced to respond, which not only clarified the leaders’ fundamental position on legal and political reform but also outlined the ideological and institutional risks that they perceived.

  • The constitutionalist debate thus provides a useful lens through which to assess the Party’s own conceptualization of public order and the political circumstances in which it finds itself.

  • At the same time, the debate reveals the profound contradictions, which exist in China at the intersection of questions of legal authority and political legitimacy.

• The development of China’s legal system is often analyzed in teleological terms that imply progressive rationalization.

  • Randall Peerenboom, for instance, argues that China may not adopt the “thick”, substantive, values-based rule of law model which underpins Western legal systems, but will develop a thin conception that stresses the formal and procedural nature of law

  • Wang Chenguang sees the development of the rule of law as a Weberian process of rational institutionalization, away from the rule of man, which prevailed during the early decades of Communist rule.

  • The leadership itself claims to pursue a socialist version of rule of law, yet it seems that in recent years this effort has stagnated.

• Carl Minzner and Benjamin Liebman both conclude that law has lost some of its attraction as a tool of social governance, and is being replaced by more flexible approaches such as mediation, or by coercive responses.

  • The impotence of China’s Constitution is well recognized at a more general level.

  • Qianfan Zhang, who became one of the most prominent voices in the 2013 debate, attributes this to the lack of judicial mechanisms to transform constitutional provisions into real outcomes, referring to China’s Constitution as a “dead letter”

  • Thomas Kellogg shares this view, pointing out that a decline of Marxist ideology has left a theoretical vacuum, which thus far judicial authorities have not filled.

• However, if law does not constitute an organizing principle for China’s public order, what does?

  • In He’s view, the Party’s power is absolute and unlimited, in the sense that it is not subject to external oversight or authority, nor to legal constraints.

  • The actual exercise of that power may be limited, sometimes by well-understood self-interest, sometimes by internal conflicts, compromises and power struggles, but it is rarely constrained through independently arbitrated procedure or consistently applied norms.

• There is thus a tension between the idea of legal rationalization and the arbitrariness of Party power, reflected in two partly complementary and partly competing approaches in political science.

  • Andrew Nathan and David Shambaugh have pointed to the routinization of certain procedures for succession and collective decision-making, as well as the creation of consultative methods and administrative reforms that forestall demands for political reform through good governance and the provision of material welfare.

  • Sebastian Heilmann and Elizabeth Perry suggest, on the other hand, that most Party and state institutions exist in a persistent state of flux and plasticity.

    • In their view, flexible, “guerrillastyle” policy-making stands opposed to political accountability, legal consistency and procedural stability.

  • Both perspectives are valid to a certain degree, albeit in different contexts and circumstances, but they tell us relatively little about strategic choices made between these two options, or how the benefits and costs of institutionalization and flexibility are perceived.

  • Well-established institutions might coordinate collective action and enable the efficient use of resources, but can also become loci of vested interests.

    • They might generate the predictability and stability needed to foster economic growth, but at the same time impair the agility which the Party deems necessary to confront emerging challenges

• It is often unclear under which circumstances institutionalization is likely to trump flexibility.

  • Yet institutionalization and rule-based governance is exactly what the constitutionalist side demanded, in a highly public manner, forcing the Party leadership to respond.

• Current Party paradigm, as exemplified in the constitutionalism...

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