China’s Constitutional Crisis

China’s first international headline this year came from the country’s southeastern province of Guangdong, long a liberal bastion thanks to its proximity to Hong Kong and history as a busy trade hub. On January 3, it came out that Southern Weekly, one of China’s most respected and outspoken newspapers, had scrapped its New Year’s greeting at the behest of Guangdong’s propaganda office. The paper had originally planned to publish an editorial entitled “China’s Dream, the Dream of Constitutionalism,” calling to mind the two main themes of newly installed President Xi Jinping’s administration. It read, in part:

We hope that our constitution cuts its teeth, that our constitution can be realized in practice someday soon . . . Only if constitutionalism is realized and power effectively checked can citizens voice their criticisms of power loudly and confidently, and only then can all people believe in their hearts that they are free to live their own lives.

Only a few weeks earlier, Xi had said much the same thing in a speech commemorating the thirtieth anniversary of China’s current constitution, igniting speculation and hope that he would be a reformer: “We must firmly establish, throughout society, the authority of the constitution and the law and allow the overwhelming masses to fully believe in the law . . . We must ensure that the power bestowed by the people is constantly used for the interests of the people.”

The greeting that actually ran did not resemble either. Instead, it spoke vaguely about the importance of pursuing dreams and quoted directly from People’s Daily, the Communist Party’s official newspaper: “Every person’s destiny is closely tied to the destiny of our nation and its people.”

When word got out that Southern Weekly had been censored, protests ensued on Weibo. The original article was leaked, and hundreds of commenters vented their outrage. Yao Chen, one of China’s most popular actresses, sent out an aphorism from Solzhenitsyn to her many followers: “One word of truth outweighs the whole world.” It was widely shared and “liked.” Demonstrations sprang up in Guangzhou, the capital of Guangdong. Several prominent lawyers, professors, and members of the media signed an open letter to Guangdong’s new Party Secretary, calling for the removal of the province’s propaganda minister.

Sensing that the situation might take a turn for the worse, the provincial government stepped in to broker a deal. They promised to lengthen the leash on the paper, and striking Southern Weekly staffers came back to work. Many considered it a small victory for press freedom in China. But the overwhelming feeling was disappointment about Xi’s commitment to fully implementing China’s constitution and the rule of law.

The Southern Weekly incident, as it is now known, brought to a head a decades-long struggle for the rule of law and “constitutionalism”—that is, a government limited by law and the constitution. As early as the summer of 1949, China’s revolutionary leaders, closely advised by Stalin, considered adopting a constitution to mitigate Western criticism of the new Communist government. The result was a startlingly liberal, egalitarian document, which in 1954 established a legislative governing body, independent courts, and freedoms of speech, the press, assembly, and religion, among many others. As with the infamous Soviet constitution of the Stalin years, its socialist promises simply existed to be broken. With Chinese society defined by struggle between classes, advocating for equal protection under the law was considered subversive, even seditious. China’s legal norms were largely undeveloped, and unspoken where they were mature, leaving them heavily subject to political whims. Courts merely issued the judgments of the Party.

The chaos of the Cultural Revolution in the 1960s and ’70s—with roving bands of red guards meting out “people’s justice” with breathtaking arbitrariness and violence—changed the situation. The protection of individual rights in the current constitution, adopted in 1982 under Deng Xiaoping—his entire family had been persecuted during the Cultural Revolution—is a direct response to their virtual absence during the preceding years. Since then the country’s liberalization and long period of economic growth has led to a rapid development of laws and legal norms establishing property and contract rights, with the goal of increasing the certainty of economic dealings involving the Chinese government and between private parties.

An increasingly robust judicial sphere has given citizens a more formal means of recourse, and a new appreciation of the importance of law in addressing private grievances and reining in an increasingly corrupt government. During the past few years, suits against officials have proliferated, for complaints ranging from illegally withholding information to wrongful hard labor sentences. Hearings to resolve disputes with government agencies are also becoming more common. Even if law remains beholden to political influence, urgency about “rule of law, protection of individual rights, and limiting the scope of authority and restraining the power of the government,” in the words of Xu Youyu, a scholar at the Chinese Academy of Social Sciences, is no longer limited to the liberal intelligentsia. A host of journals and an online mediasphere circulate frank opinions about the direction of a China characterized increasingly by restraint and rule of law.

Rapid change in the legal system has brought the country to a crossroads. China realizes that the reforms undertaken so far are not enough to support the entire system going forward, and what began as a mildly controversial component of President Xi’s moderate reform effort has devolved into an impossible debate between the most liberal and conservative voices. On the one hand, China’s liberal reformers argue for an independent judiciary, free from Party interference, and respect for individual rights such as freedom of speech and the press, all of which are explicitly in the text of the constitution. Emboldened by the government’s official greenlighting of constitutional debate, they furthermore have called for a system of checks and balances on the Party, a radical proposal that previously had only been discussed very quietly. This in turn has alarmed Party conservatives. They too want a strong legal infrastructure, but they fear that the price would be the end of Communist hegemony. So they have accused the liberals of subverting the government and trying to “westernize” China.

President Xi likely envisioned a Communist state in the old style modernizing itself by adopting a liberal legal framework, while still maintaining the basic coordinates of one-party rule. For the better part of the year, that option was off the table owing to the gridlock of the discussion. There is good news: the third plenum, or meeting, of the Communist Party’s Central Committee, which concluded last Tuesday and laid out the government’s reform agenda for the next ten years, aimed to hit the reset button. In its communiqué, the meeting resuscitated President Xi’s inaugural aspirations for the constitution.

Let the authority of the constitution and the law be safeguarded, . . . guarantee that judicial power and prosecutorial power is exercised according to the law, independently and fairly, and perfect judicial guarantees for human rights.

It may seem like the Communist Party speaks the same language as China’s liberals, but their visions for constitutional reform could not be more different. The reality is that China is in a position to undergo a kind of liberal, but not entirely “constitutionalist,” transformation that would nonetheless realize constitutional goals.

The most prominent constitutionalist voice belongs to He Weifang, a professor at Beijing University. “Constitutionalism and the rule of law are the best safeguards of liberty and the foundation of good governance in China,” He said to an audience at the venerable Beijing bookstore Sanweishuwu (named for Sanwei Study, where Lu Xun was a student) in 2010. He recognizes that, “to promote constitutional governance in a culture that lacks a strong legal tradition—and in a political system that is largely lawless—is an overwhelming task.”

That has not stopped him or his liberal colleagues from advocating for one of the country’s boldest legal reform programs. In the Name of Justice: Striving for the Rule of Law in China, published last year, is He’s case to the Anglophone world on behalf of China’s liberal constitutional campaign. In their eyes, protecting all rights enumerated in the constitution and establishing law as the highest power in the land are only first steps. An independent judiciary, with oversight of the Communist Party, is the ultimate goal. In response to those who censure them for promoting judicial monarchy and a litigious society, liberals point out that the current system has proven itself ill equipped to resolve significant social and political tensions. The rule of law is needed to settle disputes and systematize fair and just governance.

The dilemma for China’s liberal legal community in general, is that while they must curry popular support, they view the law as an adamantly apolitical, if not anti-political force. Until his downfall in March 2012, their bête noire was Bo Xilai. They decried his extralegal, campaign-style carriage of justice in the municipality of Chongqing in central China. As part of his pledge to rid the city of organized crime and corruption, Bo authorized torture of suspects and demanded convictions based on flimsy evidence. His zealous style of prosecution indicated to many that he wasn’t seeking swift justice so much as punishment for political enemies. To a citizenry unaccustomed to asking questions about due process, Bo’s methods hardly mattered. The execution in 2010 of Wen Qiang, former head of the Justice Bureau of Chongqing and Bo’s most famous scalp, cemented Bo’s national reputation as a gutsy and unusually capable official. Earlier this year, facts came out which strongly suggest that the police planted the key evidence against Wen and many others convicted under Bo.

Legal professionals in China were not surprised—and were in fact vindicated—by the revelations. In 2011, they had penned an open letter to their colleagues in Chongqing, warning that, “once Wen fell out of favor with the authorities, he must have had a rude awakening, realizing that without judicial independence no one is safe.” Their aim was to combat the widespread notion in Chinese culture that law, in a criminal context, is often obstructionist and that only the guilty need it. What underlies their faith is the principle that, without technical compliance with procedure, justice is impossible.

The case of Li Zhuang, a defense attorney from Beijing who represented an alleged gang leader in Chongqing, was another infamous example of the general lack of due process. Li was convicted of encouraging his client to falsify testimony, after a trial in which the court barred the client from facing his accusers or having his attorneys cross-examine them. In April 2011, shortly before Li’s prison sentence was complete, he faced trial again on another set of charges many Chinese lawyers agreed were fabricated. He Weifang spearheaded a successful national effort to advocate for Li’s release as originally scheduled.

Ironically, it was Bo Xilai’s own criminal trial in August that afforded Li and his backers an opportunity to make one of their most significant moves in the legal reform effort. The level of transparency of the trial’s proceedings impressed observers. Though the scant media inside the courtroom was not allowed to broadcast the trial in real time, the court’s Weibo provided reporters outside with prompt updates and daily trial transcripts. The presiding judges also allowed Bo to present a spirited defense. While gaps in the transcripts later revealed that they had been edited and that the highest echelons of government had determined the outcome before the trial began, the overall tone indicated an important shift in China’s legal ideology. Recognizing the Communist Party’s attempts to make progress, liberal legal scholars quickly hailed the trial as a positive step towards establishing the rule of law.

Even though China has quickly put into place many components of a modern legal infrastructure, one Imperial Chinese legal norm persists: because justice is an intuitive concept, the law should be guided by intuition as well. The belief comes from the Confucian emphasis on moral authority as the legitimating idea for all social institutions. (Henry Kissinger was hardly exaggerating when he observed that Confucianism is something akin to “China’s Bible and Constitution combined.”) Tapping into a growing neo-Confucianist movement in China, Jiang Qing, founder of the Yangming Confucian Academy, has called for the adoption of a Confucian constitution, which he asserts would govern the country according to its foundational principles.

According to Jiang, the rights-based constitutionalism of the West is insufficiently moral. When the protection of individual rights is paramount, he argues, people focus on enforcing those rights instead of pursuing a moral and benevolent society. Under this rubric, state power is a force for good and should not be limited by the will of the people but rather by a moral code. For, as Jiang has argued, “there are far superior religious and ethical values that authorities must implement.” If all this is true, then placing the formal limits of law on government action is a solution to a problem that does not exist.

Though the liberals dominated discussion of the constitution for the better part of the year, conservative voices like Jiang Qing’s eventually struck back through official media. In an article in Red Flag Manuscript, a publication affiliated with Seeking Truth, the Party’s most influential policy-oriented magazine, Yang Xiaoqing, a professor at Renmin University, argued that constitutionalism, as the liberal intelligentsia has defined it, would knock China off of its path of socialist development. “The socialist concept of law is to adhere to the rule of law and justice for the people, in which justice serves society at large and the Party’s leadership,” Yang wrote. In a socialist state, the people are governed by a proletarian dictatorship, and law becomes a tool of political expediency. Ultimately, the will of the masses is expressed through government.

Yang’s comically doctrinaire defense of the current constitutional structure was roundly mocked online. But the resilient Party faithful took it a step further with an article in Party Construction urging that constitutionalism be understood as a revolutionary device to topple socialist rule and the Communist Party. The net result was a tacit stifling of liberal discussion.

Willfully or not, the conservative position in the debate ignores the fact that China has absorbed many constitutional reforms while keeping the old-fashioned socialist power structure. The constitution still provides for a Soviet-style governance framework in which the National People’s Congress, as the legislative organ, is the supreme body of state power. Separation of powers is all but moot: the role of interpreting the constitution and the law falls with the Standing Committee of the NPC, not with the judiciary. And the judicial branch still exists to carry out legislative (read: Party) policy.

Judicial independence is something to be avoided. The intensely hierarchical court system, with the same professional incentives in place as those of the government bureaucracy, has a settled culture in which difficult rulings are often pre-approved by the Party. Recently, the CCP’s emphasis on resolving cases through mediation affords extralegal authorities even more influence as they take an active hand in preventing disputes from rising to the level of political unrest. The Central Commission of Politics and Law (CCPL), much maligned by liberal judicial reformists, ensures the Party retains final say over all of the country’s legal organs, including the courts.

Still, the judiciary is expanding, and may be gaining in de facto independence. The NPCSC has recently begun to delegate the task of constitutional and statutory interpretation to the Supreme People’s Court. The government has also strengthened lower courts over the last thirty years, to provide a key administrative function that the legislature does not have the time or resources to carry out on its own. The SPC had the following to say ahead of Third Plenum: “Resolutely implement the courts’ independent exercise of judicial authority based on constitutional principles, and resolutely resist all forms of local and departmental protectionism.” Sounds like the message was delivered, at least in theory: the plenum did emphasize judicial independence and promised to explore ways to remove courts below the provincial level from local political influence. Whether the Party can roll back the local analogues of the CCPL while maintaining the strength of the national organization remains to be seen. If nothing else, official acknowledgment of the SPC’s concerns is a good signal the door is opening.

For many liberals in China, upholding the constitution is an all-or-nothing proposition. Tong Zhiwei, a centrist liberal who teaches at East China University of Political Science and Law, laid out their core requirements.

Equality of citizens before the law, the right to vote and stand for election, freedom of speech, press, assembly, association, of procession and of demonstration, freedom of religion…Effective control of public authority, and continuously implementing these freedoms and rights of individuals. That is constitutional government.

Judicial independence and the rule of law are also indispensable parts of this vision. They may concede that judicial reform takes time, possibly even hundreds of years, but the elements of the liberal reform program are absolute. Their focus on the integrity and efficacy of legal institutions, particularly as they appear in the West, can seem like a kind of legal ideology—a belief that law can somehow redeem a society in a vacuum. The People’s Daily reacted with a front-page editorial entitled, “American constitutional governance is more in name than in reality”.

Conservatives argue that Chinese legal institutions are valid because of their origins in Chinese thought and practice. The main exponent of this kind of argument is Zhu Suli, dean of the law school at Beijing University. Zhu earned several graduate degrees in law in the US and returned to China to argue that legal customs are the result of social and material conditions, and this in and of itself is enough to render them legitimate. Zhu therefore doubts whether “jurists have the capacity to undertake the task of the construction of the rule of law. I still insist on my view that the rule of law is a nation’s enterprise, and the task for jurists is largely no more than the legitimation and understanding of this enterprise.” From this foundation, Zhu has made a career of passionately defending the status quo legal system in China. In a lecture for the national meeting of the Chinese government’s legal personnel in 2008, Zhu stressed that the Party should dismiss the rule of law as a “capitalist idea” and “conspiracy of the enemy states from the West.”

Many American jurists agree with Zhu’s premise that any legal system has limited power to reform society, even to establish its own legitimacy. Stephen Breyer has recently taken an interest in the development of the rule of law in China, and has found an eager audience. In his latest book, Making Our Democracy Work: A Judge’s View (recently translated into Chinese by Judge He Fan of the SPC), Breyer emphasizes the importance of producing “legal interpretations that work better for those that the law seeks to serve. The ultimate benefit is that the public is more likely to understand and accept the [Supreme] Court’s decisions as legitimately belonging to a democratic society.” In other words, judges need to keep their ears to the ground and concern themselves with how the public will receive decisions. Breyer’s fellow justices have a long tradition of deferring to legislative trends at the state and national levels and are keenly aware of public opinion. (Many scholars agree that Chief Justice John Roberts’ vote for the Affordable Care Act was motivated by the latter.) Akhil Amar, professor of constitutional law at Yale Law School, recently posited that judicial review should consider the “unwritten” US Constitution—American practices and norms that are implicitly understood as constitutionally protected but are not in the text itself. In short, judges don’t execute their duties in a sacred legal space.

Even in countries with a strong tradition of the rule of law, the legitimacy of a judiciary depends on adherence to cultural norms and must constantly be renewed. Though Chinese liberals’ efforts to educate the general public about legal concepts has bolstered the judiciary’s effectiveness, they badly need to take into account the close relationship between China’s legal and political life in order to be truly persuasive.

What the liberals may not recognize is that the treasured goal of the Chinese constitutionalist movement—a binding framework for government authority and fundamental rights—is flexible enough that it could be realized, as with many other reforms, “with Chinese characteristics.” Such reforms are already underway within China’s existing legal framework. In 1990, the NPC granted private citizens the right to sue administrative agencies for improperly carrying out a regulation. People subsequently were allowed to formally take up their grievances with an agency’s supervisory body. Legal observers in China are largely positive about the growth of these legal channels. Most recognize them as a positive step towards checking government power. The Party is comfortable enough with them that the Third Plenum reiterated their role in improving governance.

At the same time that the government was considering expanding litigation against administrative agencies a few years ago, it was also encouraging increased resolution of cases through Party mediation. Without the formalities of litigation, mediation can be more nimble and efficient, but also less observant of due process. Judges can apply pressure, for example, on one party to hasten a settlement. When there is a large number of complaining citizens, mediation resembles “political conferences aimed at coordinating responses between government bureaus (including the judiciary) and crafting solutions to ward off protest,” according to Carl Minzner, a professor at Fordham Law School.

The rise of Party-influenced mediation in place of legal action is a setback, but it points the way to what may be necessary: an increased politicization of the judiciary. In fact, China’s judiciary could do with more mediation, by various parties. In the same way that China’s legislative bodies at local levels hold public hearings, so too should the dispute resolution process involve vigorous political participation. As Richard Parker, a professor at Harvard Law School, put it, “this ‘politicization’ of the judiciary—if it can be called that—is not simply familiar, it is vital to whatever authority inheres in the judicial office.”

The possibility of a “populist constitutionalism,” in which popular opinion guides judicial decision-making, may be a way for China to get democracy through the backdoor. Judges in China, particularly in cases of mediation, aren’t simply meant to be the ultimate authority on the law; they’re also supposed to be problem-solvers taking in the totality of the circumstances, whether they’re presiding over private disputes or lawsuits against administrative agencies threatening to explode into mass public protests. In China, the concept of populist constitutionalism offers a way to liberalize the legal infrastructure by interpreting the constitution in accordance with national norms. The Third Plenum offered rhetorical support. Now it remains to be seen whether the government can fully commit to its existing legal experiments.

One of China’s most significant legal reforms to date is the abolition of a twenty-year-old regulation authorizing police to detain people if they could not present a residence permit or a temporary living permit, part of the infamous hukou system of household registration. The law was targeted towards migrant workers, an ever-growing population of China’s laborers. In 2003, a 27-year-old graphic designer named Sun Zhigang was brutally beaten in Guangzhou and died in the medical clinic of a detention center. Sun was in custody for having failed to present valid identification. His death precipitated months of outrage on the internet. Three new doctoral graduates from Beijing University’s School of Law, led by Xu Zhiyong, sent a letter to the NPC denouncing the regulation as unconstitutional. A month later, then-Premier Wen Jiabao announced the regulation had been abolished.

For Xu and his friends, the victory was bittersweet. The result was right, but it had not been based on constitutional reasoning. What turned out to be more important was the energy of citizens, and law as a political enterprise. Over the last decade, Xu has become a prominent leader of the citizens’ rights movement in China. Believing deeply in China’s constitution, he came to realize that “constitutionalism” is only part of the movement for justice and democracy.

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