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.”