China's Constitutional Crisis

Though the document enshrines liberal values, it places no restrictions on Communist Party power. Reformists are now calling for a change. 
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Delegates sit at the stage before the opening ceremony of 18th National Congress of the Communist Party of China at the Great Hall of the People in Beijing. (Reuters)

In 2008, a group of Chinese intellectuals drafted a manifesto demanding deep reforms and calling for the implementation of constitutionalism in China whereby the Party’s power would be restrained by a higher system of laws. In response to this document—called “Charter 08”—the government cracked down on charter signatories, imprisoned future Nobel Peace laureate Liu Xiaobo, and interrogated at least 70 others. Further discussion on constitutionalism was muted.

This year, President Xi Jinping’s comments in support of legal reform have reignited the debate. Reformists have long believed that adherence to the constitution would bolster the Communist Party’s credibility, but conservatives now argue that constitutionalism is unsuitable for socialist countries, even suggesting that American intelligence agencies are backing it to subvert Beijing. A recent comparison of articles shared on Sina.com, home of popular microblogging platform Sina Weibo, suggests the Chinese public appears to be in favor of reform. And, in the latest development, support for constitutionalism has caused the suspension of an outspoken law professor.

“It looks beautiful on paper, but in practice Chinese courts do not generally take the Chinese constitution into consideration to decide cases.”

In an August 25 statement, Professor Zhang Xuezhong, of East China University of Politics and Law in Shanghai, said that the university had accused him of violating “teaching ethics” as well as the constitution of the People’s Republic of China with his article, “The Origin and Perils of the Anti-Constitutionalism Campaign in 2013”, which included heavy criticism of President Xi Jinping.

Indeed, the president's very role in this debate has been particularly enigmatic. In December, Xi had sparked optimism among liberals by saying, in one of his first speeches as president, that “no organization or individual shall enjoy privileges beyond the constitution,” and that it “should be the legal weapon for people to defend their rights.” But last month, the Party’s main mouthpiece, the People’s Daily, ran front-page commentaries attacking constitutionalism, saying it is a poor fit for China’s socialist system. A subsequent article in the paper’s overseas edition said the calls for constitutionalism are meant to overthrow “dictatorship by the people” and restore “dictatorship by the capitalists” in the name of democracy. Then, an internal Party memo referred to as Document No. 9 called for the eradication of “seven subversive currents” in Chinese society including “Western constitutional democracy,” universal human rights values, media independence, and civic participation.

But despite recent government efforts to stifle support for constitutional rule, the debate has continued. Qian Gang, the former managing editor of Southern Weekly, one of China’s most independent newspapers, argued in a piece published on Monday that the death of constitutionalism is far from certain. He noted that online debates for and against the practice have been evenly matched, and even the People’s Daily has published an article expressing a fairly neutral view on constitutionalism.

“Constitutionalism, whether we’re talking about a political term or an institutional arrangement, stands right now on a knife’s edge in China,” Qian wrote. “Will it remain? Will it be thrown out? Will it live? Will it die? At the end of August, constitutionalism seemed to be in imminent danger. But as of yet, it has not become a deep-blue term. It is impossible to say whether Xi Jinping has even decided whether he means to ‘get rid of constitutionalism’ or to ‘implement constitutionalism’.”

Beijing University law professor He Weifang, a constitutionalism expert, referred to the document as a “sleeping beauty”, in that it promises so much but delivers so little. “What factors allow us to develop such a high-sounding constitution that often degenerates into lip service and empty promises? Perhaps, it is necessary to analyze Western constitutional practices ... to help us understand how to activate our constitution’s elements,” he wrote in a 2008 essay on the subject.

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China’s current constitution was adopted at the Fifth National People’s Congress in 1982 after the chaos of the Cultural Revolution prompted the government, then under de facto leader Deng Xiaoping, to strengthen the rule of law. The document enshrines liberal values like the protection of human rights, freedom of speech, freedom of the press, freedom of demonstration and property rights. But the constitution does not limit the Party’s power—a vital detail that reformists say renders it meaningless.

“It looks beautiful on paper, but in practice Chinese courts do not generally take the Chinese constitution into consideration to decide cases,” said Dan Zhou, a Shanghai-based lawyer. “Ordinary citizens cannot use the constitution to defend their rights or redress their grievances.”

In the years since the Tiananmen crackdown in 1989, China’s legal reforms have focused on creating “the rule of law without politics,” said University of Hong Kong Chinese law professor Fu Hualing. Rather than establishing a legal framework for all aspects of governance, Fu says Chinese lawmakers instead sought to limit legal issues to regulating business transactions and supporting economic growth.

Nevertheless, calls for China to adhere to the 1982 constitution remain. In December, Beijing University professor Zhang Qianfan published “A Proposal for Consensus Reform”, co-signed by 72 intellectuals including He Weifang, demanding that the government abide by the charter. The proposal suggested setting up a review committee within the National People’s Congress as a first step to give the constitution real power. But the article, which was posted on Zhang’s personal blog and the Beijing University Law School website, was soon deleted without explanation.

The constitutional debate came to a head—and reached a wider audience—earlier this year when editorial staff of the Southern Weekly newspaper staged a strike against the censorship of their New Year’s edition. The paper had run an editorial titled “Chinese Dream, Constitution Dream” which called for enforced limitations on government power, but censors replaced the piece with an essay praising the country’s advances.

In May, state media and conservative Party journals responded with a spate of editorials raising a new concern about constitutionalism. Renmin University law professor Yang Xiaoqing wrote in the Party journal Red Flag that constitutionalism is “not suitable for socialist countries” because the system “belongs to capitalism and bourgeois dictatorships.” A Global Times editorial went further to say that constitutionalism was “a new way to force China to adopt Western political systems.”

Internet users responded en masse to the editorials, prompting Sino Weibo to delete three-quarters of the nearly six million posts. Prominent real estate developer and popular microblogger Ren Zhiqiang wrote: “Constitutionalism is very simple. It means putting power in a cage and giving the key to the people.”

Can Beijing address public interest in reviving constitutionalism while maintaining stability? Kerry Brown, professor of Chinese politics at the University of Sydney, expects the government to respond “pragmatically” to quell the issue.

“They probably see no reason now for the Party to limit its own powers,” said Brown. “But if they could be convinced that constitutionalism could better guarantee the Party’s dominance then they may have no problem supporting it.” 

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Joanna Chiu is a Hong Kong-based journalist who has written for the South China Morning Post, The Economist, and Newsweek.

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