Among public intellectuals on China’s Internet, the term “constitutionalism” (“宪政”) has been raised with increasingly frequency. Esoteric as it may sound, the term is probably the most frequently invoked in the context of political reform, rising above the ranks of “Liberty, Equality and Fraternity,” democracy, or human rights. Why has constitutionalism become a banner to unite Chinese reformists, and what does it really mean?
A brief history of constitutionalism
In short, constitutionalism is the idea that government derives its authority from, and is thus limited by, a fundamental higher law. Constitutionalism was one of the six “fundamental concepts” featured in Charter 08, a 2008 document demanding deep reforms which was quickly quashed by the government (and which landed sponsor Liu Xiaobo both a Nobel Peace Prize and an indefinite detention in a Chinese jail).
But “constitutionalism” was perhaps the mildest of the “fundamental concepts” listed in that document. Unlike its peers – freedom, human rights, equality, republicanism, and democracy – which were simple and unequivocal, constitutionalism could be seen to require only that the Communist Party should respect the language of a document that the Party itself had written.
Following the explosive release of Charter 08, reform-minded Chinese started rallying around constitutionalism. At the turn of 2013, Yanhuang Chunqiu, a liberal publication featuring articles by many high-ranking party officials, titled its opening message, “Constitution is the Consensus for Political Reforms.” Around the same time, Peking University professor Zhang Qianfan published the Proposal for Consensus Reform, which was signed by some 70 intellectuals demanding governance according to the constitution. Both articles were censored.
On a popular level, the 2013 New Year was also a milestone in bringing constitutionalism to a wider audience, when it was discovered that the carefully crafted New Year’s message of Southern Weekly, a popular magazine, had been replaced by a garbled article written by a propaganda official acting without the knowledge of the Southern Weekly.
The original New Year’s message was entitled, “Chinese Dream, Constitution Dream.” Reappropriating the “Chinese Dream,” a recent rhetorical campaign by president Xi Jinping, the deleted passage read: “Realizing constitutionalism, safeguarding civil rights … limiting power and separating the powers, only through this can citizens voice criticism of public power, can everyone lead a free life according to their inner beliefs, and can we build a free and strong country. Only after realizing the greater dream of constitutionalism can everyone have a beautiful individual dream.”
This deleted passage was posted on Sina Weibo, a popular microblogging platform, by the reporters of Southern Weekly. It was deleted at first, then reposted by tens of thousands of people. Sina, the company that operates the platform, allowed the passage to stay on the web for about 15 minutes before fully “cleaning it up,” which won Sina some praise. During that interregnum, the rapid posting and reposting of the deleted passage was the largest online collective action this author has ever seen.
Chinese authorities were not content to stay on the defensive. On May 21 and 22, two more articles swept the country’s Web. The first was from a Party journal, the Red Flag, arguing that “constitutionalism” was a concept that belonged to capitalism and had no place in socialism. The second was an editorial from the government mouthpiece the Global Times, denouncing the proponents of constitutionalism for indirectly negating China’s pathway to development. More conservative articles occupied Party-approved publications, so did liberal defenders voiced out online and offline in the week that followed up to this moment.
The conservative arguments did not seem to have persuaded netizens. Weibo user @过客男嘉宾 commented on the Global Times editorial: “[Constitutionalism] negating China’s road of development? Please change your phrasing [and be direct]: what it negates is the Communist Party’s dictatorship.” Some netizens were more savvy. User @立场旁观 wrote, “The current constitution was drafted under the leadership of the Communist Party. Not following the constitution – are you disobeying the Party?”
Why this flag?
Why has constitutionalism become the banner behind which Chinese reformists have united? There are both psychological and tactical reasons.
It goes back to the last days of the final dynasty in China: the Qing. Reformists realized that something had to be done to lift China beyond repeated humiliations from foreign assaults and proposed to turn the empire into a constitutional monarchy, much as China’s neighbor and former protégé Japan had done. They even persuaded the imperial court, who promulgated the Outline of Constitution by Imperial Order in 1908. However, the gesture was too little, too late. Before any laws were implemented, the emperor was toppled by revolutionaries. China officially became a republic on Jan 1, 1912.
The revolutionaries drafted China’s first constitutional document, made proposals for how China should move towards democracy, and held China’s first parliamentary elections. But this was not enough to prevent China from falling into tumult. The first democratically elected prime minister was assassinated in 1912. After that, China roiled with twenty years of strife between warlords, Japanese occupation, and the civil war between the Nationalists and Communists.
The Father of the Republic, Dr. Sun Yat-sen, once envisaged that the republic would go through an evolution: “military rule, [then] political tutelage, [then] constitutional rule.” The Republic government announced the transition to constitutionalism in 1947, but it retreated to Taiwan two years later after losing the civil war to the Communists. Even in Taiwan, the constitutional period was soon replaced by “temporary” military rule, which lasted until democratization in 1987, in the name of combating communism.
There is thus a pathological quality to China’s road toward constitutionalism. Some have lamented the missed opportunity in the final years of empire, others how the transition was hijacked by wars and invasions. But all agree that it is a revolution that never ended, a dream never realized.
Despite their ultimate failure, the earlier attempts to establish a constitutional order planted a seed in Chinese people’s minds, a memory that can still be revived. Dr. Sun Yat-sen’s political vision of an eventual evolution to constitutionalism still hangs around in state-sanctioned history books.
There is also a more recent motivation for the latest round of constitutional discussion: China’s new leaders, who are still perceived as more reformist than their predecessors. In November 2012, newly inaugurated President Xi Jinping said in a speech commemorating the 30th anniversary of the current constitution: “No organization or individual shall enjoy any privilege beyond the constitution and laws…any action in contravention of the constitution and the laws shall be prosecuted.” President Xi also said that the life and authority of the constitution lies in its implementation, and that the constitution “should be the legal weapon for people to defend their own rights.”
This sounded much like a warrant to talk about constitutional rights, which would not be a bad starting point to fix the social problems facing China today. Violent land expropriation, brazen abuses of government powers, and censorship are all prohibited by the language of China’s current constitution, which provides that citizens’ property rights are sacred and inviolable, and explicitly protects human rights, freedom of speech, freedom of the press, freedom of assembly, and demonstration.
But bridging abstract ideals and actual working protections requires institutional bulwarks be put in place, such as separation of powers and an independent judiciary with the power of judicial review. Ultimately, down the road of reform, enforcing specific rights converges with the core claim of constitutionalism: a law to rule above all others. Such a law, by definition, would dethrone the ruling Communist Party from its position of absolute supremacy.
Limits to one document’s power
The power of China’s constitution is limited. The document has “supreme legal authority,” but remains “under the leadership of the Communist Party of China.” While “no law or administrative or local rules and regulations shall contravene the constitution,” there is no judicial review. Civil rights are enshrined in the constitution, but enforcement measures are absent or insufficient. Finally, people’s courts, in charge of upholding the constitution, are supposed to exercise judicial power independently, but are elected by, accountable to, and supervised by the People’s Congress (the legislature), with a CCP party committee at each level of the court system.
Many if not most reformists surely know that constitutional rights and “constitutionalism” writ large are not precisely the same. Some intentionally exploited the rhetorical similarity to push reform forward, taking Xi’s speech as a ticket to make further calls for an overhaul of the political system. The recent mainstream media attacks on constitutionalism show that Chinese authorities are not ready to make that jump.
Nevertheless, as the debate goes on, more people join in probing the contours of China’s political future. This, in itself, draws the country just a bit closer to the ideals enshrined in its own governing document.