China in Transition
The Debate over Constitutionalism: Political reforms at a crossroads
Chi Hung KWAN
Consulting Fellow, RIETI
A debate over the pros and cons of constitutional government has emerged in China in the wake of an incident in which part of an editorial titled "China's Dream, Dream of Constitutionalism" that was ready to be posted in the New Year's edition 2013 of the Southern Weekend, known for its liberal tone, was replaced at the direction of the supervisory authorities. This debate is primarily between the pro-constitutional government group, which argues that China should aim at a constitutional government as its goal of political reforms, and the anti-constitutional government group that opposes this idea. Within the pro-constitutional government group, a debate has also arisen between the social constitutional government group, which asserts that only modest political reforms should be pursued based on the current constitution, and the liberal constitutional government group, which calls for more radical reforms (see Figure 1). This debate has attracted attention at home and abroad as its outcome could influence the future course of China's political reforms.
Arguments of the anti-constitutional government group
A typical argument of the anti-constitutional government group is a view presented by Yang Xiaoqing, a professor at Renmin University of China (Yang Xiaoqing, "A Comparative Study of Constitutional Government and People's Democracy," Red Flag Manuscripts, 10th issue of 2013, May 2013). In the article, Professor Yang says that since the core institutional element and idea of a constitutional government as a basic institutional framework for Western modern politics are meant only for capitalism and the dictatorship of the bourgeoisie, it is obviously different from the socialist people's democracy that China has now adopted, as described below:
- While the market economy based on the private ownership system forms the foundation in a constitutional government, public ownership is a key element in a people's democracy.
- While parliamentary democracy is implemented in a constitutional government, all rights belong to the people in a people's democracy.
- While the separation of powers is implemented in a constitutional government, the People's Congress is implemented in a people's democracy.
- While the judicial branch has independence and the power of judicial review in a constitutional government, the National People's Congress and its Standing Committee supervise the constitution in a people's democracy.
- While the military forces are politically neutral and under the control of the state in a constitutional government, the military forces receive the absolute guidance of the Communist Party in a people's democracy.
Therefore, as the acceptance of a constitutional government denotes a complete change of the nature, political system, and direction of the social development of the state, China should adamantly reject it.
The pro-constitutional government group is divided into those in the social constitutional government group and those in the liberal constitutional government group
Scholars in the pro-constitutional government group share the common belief that a constitutional government should be a goal of political reforms, but they are divided into the social constitutional government group and the liberal constitutional government group, based on their attitude toward the current constitution.
First, the social constitutional government group calls for the effective and complete implementation of the constitution while securing the basic rights of the people by clearly specifying the authorities of the Communist Party in the constitution, based on the recognition that it is impractical to challenge the position of the Communist Party which is likely to continue to rule China for a long time to come. The key figures in this group are scholars within the establishment such as Xu Chongde, a professor at Renmin University of China, an authority of constitutional law, and the only scholar to participate in the drafting of all four constitutions of China; and Tong Zhiwei, a professor at the East China University of Political Science and Law.
Professor Tong proposes that political reforms should be embarked on specifically in the following four areas (Tong Zhiwei, "Supplementary Explanation of the Concept of a Socialist Constitutional Government," http://blog.sina.com.cn/s/blog_6d8baa 340101gtiw.html):
- Guarantee the freedom of speech and of the press, the freedom of association, and the freedom of religion and belief, particularly, the right of people to have oversight over the civil service and civil servants by law.
- Allocate the majority of seats in the People's Congress at each level of local regions to candidates recommended by the Communist Party and, at the same time, expand the scope of application of direct elections to the People's Congress at levels above that of counties. Also, increase the number of seats elected by free election.
- Build a court system centering on the exercise of independent jurisdiction by judges. Maintain the rectitude and fairness of judges and guarantee the openness of trial proceedings by law by learning from the experience of foreign countries.
- Ensure personal liberty and the freedom of communication by strictly limiting the power of law enforcement agencies.
Meanwhile, the liberal constitutional government group argues that China should aim to establish a constitutional government characterized by an independent judiciary, limited powers, a military under the control of the state rather than the Communist Party, and the political neutrality of civil servants, with free elections as the final goal through more radical reforms. The key figures in this group are scholars who keep their distance from the establishment, such as He Weifang, a professor at Beijing University, and Zhang Xuezhong, a lecturer at the East China University of Political Science and Law.
Professor He says that China should follow steps that have been proven effective in other countries, now that such ideas as the public ownership system, the single-party system, the lack of independence of judiciary, and the complete control of media by the Communist Party, which were thought to promote development, have been proven wrong. He also argues that transforming the Communist Party into a Northern European-type social democratic party from within and acknowledging the rationality of competition in politics is not a bad choice at all ("The Debate over Constitutionalism in China - Dialogue with He Weifang," The web edition of the Lianhe Zaobao, June 24, 2013).
Xi Jinping's stance close to that of the social constitutional government group
Meanwhile, Xi Jinping, the General Secretary of the Communist Party of China, stresses that power must be kept within the cage of institutions by strengthening restrictions on and the supervision of the exercise of the powers" (in a major speech at the second plenary session of the 18th Central Commission for Discipline Inspection of the Communist Party of China, January 22, 2013). The constitutional government can be said to be the exact equivalent of the cage. Xi's views on the constitutional government can be summarized as follows (in a major speech made at the "Meeting Commemorating the 30th Anniversary of the Promulgation and Enforcement of the Current Constitution," December 4, 2012):
First, "the Constitution of China establishes a path of socialism with Chinese characteristics, a theoretical system of socialism with Chinese characteristics, and outcomes of the development of a socialistic system with Chinese characteristics, and reflects the common will and fundamental interests of the people of all ethnic groups in the country in the form of the basic law of the state to become the supreme legal embodiment of the central tasks, basic principles, major guidelines, and important policies of the Party and the state in the new era of history."
He also said that the Party has to evaluate the performance of the Constitution fully and, at the same time, recognize its shortcomings as follows:
- The supervisory structure and the specific systems to guarantee the implementation of the Constitution are still insufficient, and phenomena such that laws are not followed, even if they are established, laws are not strictly enforced, and illegal acts are not examined are still observed.
- Problems in the enforcement of laws and judicial affairs related to the compelling interests of the people are relatively noticeable.
- The authority of the legal systems of the state is seriously undermined, as the abuse of power, the neglect of duty, corruption, illegal acts in the enforcement of laws, and acts to bend laws based on the personal feelings by some public officials are observed.
- It is necessary to raise the constitutional awareness of members of the community, including some officials in the leadership.
He adds that "the full and persistent enforcement of the Constitution is the most important mission and the basic work to build a socialist country ruled by law. The Constitution is the country's basic law and the general rule in managing state affairs. It has supreme legal status, authority, and efficacy, and is fundamental, comprehensive, stable, and lasting. No organization or individual can have privileges exceeding the Constitution and the law. All acts violating the Constitution or law must be investigated."
Finally, he says that "A country ruled by law should be first ruled by the Constitution, and the lawful governance should be based on the Constitution. While the Party should lead the people and establish the Constitution and laws, the Party itself should act within the scope of the Constitution and laws and be at the forefront of guiding the legislation, guaranteeing the enforcement of laws, and truly achieving compliance with the law."
General Secretary Xi Jinping's stance of enforcing the current Constitution while firmly maintaining the leadership of the Communist Party comes close to that of the social constitutional government group, which has taken the middle ground in the current debate. Let us wait and see how the Communist Party of China will advance political reforms under the auspices of General Secretary Xi Jinping, while fending off pressures from both the liberal constitutional government group (the right wing) and the anti-constitutional government group (the left wing).
July 3, 2013
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