The Constitutionalism Debate in China

—Rogier Creemers, Centre for Socio-Legal Studies & St. Antony’s College, University of Oxford

Cross-posted from the Blog of the UK Constitutional Law Group

Over the past few months, a heated debate about the role of the Constitution in Chinese political life has emerged. This debate comes in the wake of the 18^th Party Congress and the handover of power to the fifth generation of leaders with Xi Jinping becoming General Secretary of the Party, and equally importantly, Chairman of the Party’s Central Military Commission. Before the handover, there were hopes that Xi, who was seen as more affable and less rigid than the wooden Hu Jintao, would bring political reform initiatives to a country in which social tensions are becoming rampant, were corruption is endemic, and scares about food security have led to worldwide panic buying of milk powder by Chinese citizens.

Those calling for reform, however, had to do so in cautious and circumspect terms, couched in language that would not directly contravene the Party’s core ideological pillars. A previous reform call, Charter 08, landed its drafter Liu Xiaobo both a Nobel Peace Prize and a prison sentence for subversion. Hence, the call for reform was made under the heading of “constitutional governance” (xianzheng 宪政). On New Year’s Day, the activist intellectual journal Yanhuang Chunqiu posted a New Year’s message, Constitutional Governance is the Consensus for Political Structural Reform, which claims that “Although the existing Constitution is not perfect in every way, as long as it is satisfactorily implemented, our country’s political structural reform will make a great step forward.” A few days later, the well-known outspoken newspaper Southern Weekend published an editorial, The Chinese Dream, the Dream of Constitutional Governance, which claims that “Only under constitutional governance will it be possible for the country to continue to become strong and wealthy, only under constitutional governance will it be possible for the people to become truly formidable. Only by fulfilling the dream of constitutional governance will it be possible to strive for national sovereignty abroad even better, and safeguard the freedom of the nation; will it be possible to even better strive 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.”

Both articles were censored. In Yanhuang Chunqiu’s case, the website was taken offline for a number of days, while the Southern Weekend editorial was replaced by a more neutral text, allegedly through a decision of the Guangdong provincial censorship chief Tuo Zhen. By that time, the new leadership had already started deploying its own ideological campaign, that of the Chinese Dream of the great rejuvenation of the Chinese nation. This campaign is predicated on the notion that China is finally coming close to realizing the ideal of modernization after suffering humiliating colonial subjugation in the 19^th and early 20^th Century. The successes that have been reached so far are deemed to be largely due to the enlightened leadership of the Chinese Communist Party, and the ideological/theoretical system of Socialism with Chinese Characteristics.

Understanding this system is important in framing the discussion about constitutionalism. Some of its key components, while often informed by classical Chinese political concepts, clearly bear a Marxist imprint. In this discussion, the most important ones are monism, historicism and positivism. These interlinked concepts respectively refer to the idea that there is only one correct way to understand and evaluate systems in an epistemological and moral sense; the idea that history is predetermined and follows a necessary path; and the idea that the social world is underpinned by ‘laws of nature’ that can be understood, and used to manipulate society. The ultimate objective is to lead Chinese civilization towards a predetermined Utopia, which has at various terms been known as Communism, the Great Harmony, the Chinese Dream and the Harmonious Society.

This view strongly influences the Chinese concept of law in general and the Constitution in particular. As it posits that the future is predetermined and largely known, the legitimacy of rules and norms is the contribution they make to progress towards that future. Hence, they legitimize capricious and arbitrary policy decisions, as long as these can somehow be justified as “progressive”. In turn, this term is operationalized in, amongst others, cadre and official evaluation systems that measure performance in a limited, quantitative set of output indicators. Unsurprisingly, this leads actors up and down the hierarchy to behave strategically, in order to respond to the incentive structure in which they are placed, often resulting in corruption and arbitrariness.

Little room is left for rights in the Dworkinian sense, which are ‘trumps’, or entitlements to expectations of treatment that can only be denied or infringed upon with justified cause. This presupposes, however, an acceptance of the fact that often, legitimate interests in society legitimately conflict, and an equitable balance between them needs to be found. In Chinese monist political-legal system, however, such conflicts are often unmentionable, as they would seem to imply that economic exploitation still takes place, and that therefore, the Socialist project failed. Also, it would imply having to recognize that the benefits of crossing the river might not be shared by all, harming the project’s legitimacy.  Most of all, it would be beyond the pale to suggest that citizens need protection against the Party-State, as this – in the official view – only strives to serve the people. Rather, the view is that “contradictions” are caused by the fact that knowledge about society and development remains imperfect, and that these will be resolved in the end.

While the official point has been forcefully made in a number of theoretical and editorial articles in major Central journals and newspapers, the counterarguments are somewhat less clear. To a certain extent, this can be explained by the risks incurred by franc-parler. For example, the constitutional scholar Zhang Qianfan recently published an article in which he analyzed the preambles of different constitutions, concluding that it is not necessary to include references to specific persons or ideologies in a constitution. While this could be interpreted as removing references to Marx, Mao and the CCP from the Constitution, Zhang refrains from saying so directly. But there is a deeper question of thinking as well for those opposing the system. There are different levels at which dissent and protest can take place: from the individual actions of officials and cadres, past specific policies, to the institutional arrangements of the country and ending up with the fundamental philosophy that informs the structure of state and society. The official line claims that the basic philosophical foundations are correct, and therefore, so are the fundamental institutional structure and the general policies of the State. Nonetheless, circumstances change and knowledge increases, so in order to progress, specific policies must be adjusted flexibly. Any further imperfect outcome in society must therefore be the result of officials not implementing policies well, either because of corruption or because of a lack of sufficient knowledge and effort. The notion that it might be the very arbitrariness of policy (which in the public eye is often confused with corruption) that causes popular dissatisfaction is anathema.

Interestingly, a number of constitutionalist voices share a number of aspects of this official narrative, particularly where it relates to the claim to progress to an ideal society. This is, however, hard to reconcile with the increasing complexity of a modern society, where it is impossible to fully harmonize interests, values and outcomes, and it is necessary to develop channels for political negotiation and bargaining to share unavoidable harm and risk. In China, however, this point remains moot: whatever the chatter about constitutionalism, Xi’s leadership has manifested itself as strongly neo-Dengist: willing to engage in deep economic reform, but also to maintain political and social stability at all costs. Perhaps the leadership style goes even further back: a few days ago, the Standing Committee launched a rectification campaign in classic Maoist tradition, aimed at removing those Party members who are unwilling to forsake perks and privileges, but who want to toil and struggle for progress towards the Chinese Dream. But the nasty question will remain: when will the Party-State keep the promises that it made in its own Constitution?