The Uncertain Death of “Constitutionalism” in China

At The Atlantic, Joanna Chiu surveys the debate over whether the Party should be subordinate to China’s constitution, or vice versa:

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.

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.” [Source]

Over the course of 2013, following heavy-handed harmonization of a constitutionalist New Year message in the Guangzhou-based Southern Weekly, a campaign has been waged in China’s media to undermine and discredit the movement. Qian Gang reviews the debate at China Media Project, concluding that there may be less to this “wave of anti-constitutionalism” than meets the eye, and that the fate of Chinese constitutionalism apparently has yet to be written:

In summing up the controversy over constitutionalism over the past four months, there is one another important fact to note. The writers who have argued for constitutionalism have all used their real names. All are well-known scholars who have for years written about constitutionalism and political reform. Their articles reaffirm general understandings they have held for years. Most of the writers for the anti-constitutional camp, on the other hand, have not used their real names. The writing is ragged and poor, and full of brow-beating language reminiscent of that during the Cultural Revolution. Some of the writings are even crude, as though off the cuff. I find it very hard to believe that these could really be a concerted strike against a “reactionary current” by an elite team of CCP theory wonks.

There is little question, given the powerful push behind these articles, that they enjoyed powerful political backing. But exactly what sort of backing remains a serious question. Why, after all this time, haven’t the People’s Daily and Seeking Truth said anything? Is this strategic offensive? Or is it a kind of reconnaissance by fire, to see how the enemy reacts? Or is it, perhaps, a tactical probe?

Constitutionalism, whether we’re talking about a political term or an institutional arrangement, stands right now on a knife’s edge in China. 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” (去宪政) or to “implement constitutionalism” (行宪政). [Source]

September 3, 2013 7:38 PM
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