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 debate, rejects both the fundamental idea of institutionalizing relationships between Party, state and citizenry and any need to subject these to formal oversight and accountability procedures.

• Instead, efforts have been directed at co-opting particular social demands into pre-existing political–legal forms.

  • It seems more likely that, in the absence of disruptive or catastrophic events, change will occur through the gradual identification and resolution of problems within the paradigm, rather than through a dramatic paradigm shift—even if a shift is covered by the ostensibly harmless phrase, “implementing the Constitution”.

Timeline, Venues, Participants and Arguments

• The pro-constitutionalist position did not originate out of thin air, but was only the last iteration of an intellectual strand harking back to the beginning of the Chinese Republic in the early 20th century.

  • Early reform initiatives focusedonredrafting the Constitution, in the perhaps naïve belief that drafting a correct text would lead to political and social order.

  • In 1924, Sun Yat-sen used the term xianzheng to refer to the final stage of his blueprint for national reconstruction, which would end a provisional period of political tutelage and Kuomintang Party rule.

  • In 1954, efforts to draft China’s first Constitution led to a broad national debate on governance, constituting one of the first moments of criticism of Party practices.

  • In 1974, during Mao’s rule, a group of young people, under the pen name Li Yizhe, demanded constitutional protection for civil rights and a curb on Party privilege and abuse

  • In the post-Mao reform era, an increasing number of legal scholars and commentators, often trained in the US, advocated the consolidation of the Constitution’s authority, particularly in view of persistent corruption, improper state coercion and the lack of political reform.

• There is a wide spectrum of positions ranging from liberal constitutionalism (which proposes fundamental political change) to socialist constitutionalism (which advocates incremental, gradual reform within the current framework).

  • More exotic ideas about constitutionalism also developed, including a Confucian approach that, among others, proposed the appointment of a descendant of Confucius as the head of a house of representatives

• Consequently, by the time the constitutional debate erupted in 2013, few of the arguments were novel.

  • Rather, the debate’s importance lies in the mobilization of a constitutionalist position as a call for political action, and the leadership’s subsequent response.

• The debate started unintentionally with a speech by Xi Jinping on 4 December 2012 at an event commemorating the 30th anniversary of China’s 1982 Constitution:

  • One particular remark by Xi, that “the life of the Constitution lies in its implementation”, was the trigger for the publication of an open letter with constitutional demands signed by 71 liberal intellectuals.

  • The ensuing debate can be divided into four phases, alternating between pro- and anti-constitutionalist initiatives. The first phase, from December 2012 until April 2013, containedrelatively low-key responses to Xi’s speech, as well as the New Year’s incidents outlined at the beginning of this article.

  • During the second phase in May 2013, Party media outlets published a number of anti-constitutionalist articles, which brought the debate to public attention.

  • The third phase, between June and August 2013, saw a growing number of pro-constitutionalist voices reacting against these outspoken texts. The fourth stage, August 2013, saw further anti-constitutionalist publications and the start of a crackdown on social media that brought the debate to an end, leaving it to peter out over the closing months of 2013.

• The essays on the anti-constitutionalist side were mainly published in three Party media outlets

  • suggesting a certain level of support or authorization within at least the propaganda bureaucracy. In particular, two of the publications were subordinate to more authoritative titles

• The pro-constitutionalist arguments were made through more diffuse channels

  • Other pro-constitutional articles were published in the journal Caijing and other mainstream reformist outlets.

  • However, perhaps the medium with the greatest impact for the pro-constitutionalist side was the Internet. The December open letter and many other writings were published and shared by blogs, social media and intellectual websites

  • The debate aroused considerable interest on social media, even outstripping news about the Chinese moon probe. The vast majority of Internet commentators demonstrated support for the pro-constitutionalist position.

• This position was put forward first in the open letter signed by 71 academics and published online on Christmas Day, framed as a consensus-based proposal for reform based on the 1982 Constitution.

  • It identified three main problems:

    • 1. a lack of separation between Party and state;

    • 2. centralization of decision-making within the Party; and

    • 3. insufficiently well-institutionalized intra-Party election mechanisms

  • The drafters claimed that these problems result in abuses of power, corruption and arbitrary government, social unrest and disaffection.

  • They proposed constitution-based measures to expand electoral democracy, respect for the freedom of expression and association, a deepening of market economic reforms, and judicial independence.

  • YHCQ’s New Year’s article, published a week later, raised similar topics, in particular pointing to unfulfilled constitutional provisions on the powers of the National People’s Congress, property rights, human rights, freedom of speech and assembly, personal freedom and judicial independence.

  • The unpublished Southern Weekend New Year message took another tack, taking its cue from the Chinese Dream, the slogan which Xi Jinping launched soon after his accession.

  • In a poetic article, Southern Weekend saw the implementation of the Constitution as the conclusion of the Chinese people’s journey through the ruin of empire and the disasters of the 20th century.

    • Now, on the cusp of a new era, constitutionalism would allow all Chinese citizens to fulfill their dreams, with their rights protected and their liberty guaranteed.

    • Only under constitutionalism will it be possible for the country to continue to become strong and wealthy, and . . . for the people to become truly formidable. Only by fulfilling the dream of constitutionalism will it be possible to strive for national sovereignty abroad even better, and safeguard the freedom of the nation; . . . strive even harder for civil rights at home, and safeguard the people’s freedom. And the freedom of the country must, in the end, rest on the freedom of the people; it must rest on the fact that everyone may speak their hearts, and everyone may have dreams in their hearts.

• Official media immediately responded. The populist-nationalist Global Times published two editorials on the same day.

  • The first, written by law professor Yu Zhong, held that constitutionalism can only be developed with reference to specific national conditions, not on the basis of foreign models or simple political proposals.

    • While Yu sympathized with the constitutionalists’ idealism, he found their reasoning oversimplified

  • The second editorial accused the Southern Weekend protesters of willfully stirring up trouble, and claimed that the media should know its proper place within the larger picture of reform.

• While the topic of constitutionalism faded from public view after a few days, intellectual websites and journals continued publishing a trickle of further articles.

  • YHCQ in particular remained vocal, publishing a series of pieces seemingly aimed at persuading the leadership that constitutionalism was not something to be feared or a path to instability, but a logical next step on China’s reform path and a solution to fundamental problems plaguing Chinese society.

  • However, by the middle of May, reports emerged about a secret Central Committee document identifying constitutionalism as one of seven acute ideological problems. It clearly targeted the New Year’s messages, indicating:

    • ‘Western constitutionalist democracy has a clear political connotation and orientation. It includes the tripartite separation of powers, the multi-party system, universal suffrage, judicial independence, nationalization of the military and other such matters; it is a “bourgeois concept of the State, the political model and the institutional design” ‘.

    • Some people also use the “dream of constitutionalism” to distort the Chinese Dream of national rejuvenation, saying that “constitutionalist democracy is the only way out”, and “China should follow the global trend of constitutionalism”.

    • The danger of propagating Western constitutionalist democracy lies in setting the Party’s leadership against the implementation of the Constitution and the law; denying Party...

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