All across China today, schoolchildren are partaking in the newest holiday to grace the country’s calendars: Constitution Day. As part of the celebration, kids are expected to read from the document and discuss it in class, while teachers are encouraged to engage in study sessions and lecture about the Constitution’s continuing relevance. You might wonder about the timing of the festivities; this inaugural commemoration of China’s highest legal document comes a full 32 years after it was ratified in 1982 under Deng Xiaoping. Yet 2014 was not randomly selected as the year to celebrate China’s fundamental law---far from it. While the country’s Constitution has long been invoked by Party officials in their rhetoric, since the rise of President Xi Jinping, the actual import of the document has skyrocketed. The Constitution has emerged as part of a larger debate in the Party, which President Xi Jinping has personally spearheaded, over the necessity of legal reform in China to deal with corruption and assuage popular opprobrium.
In light of the growing speed of legal reforms in China, this week’s Lawfare #tbt is going to delve into the country’s Constitution: what the document is, what it isn’t, and why it matters for the future of China’s governance. To be clear, the piece won’t undertake an exhaustive, legal examination of the Chinese Constitution. The post’s objective, instead, is to explain the significance of this nascent trend of Chinese constitutionalism. To that end, the post will first contextualize the recent drive for “rule of law/rule by law” (the distinction is important), and then examine the kinds of dangers a more robust Constitution could pose to the Party’s hold on power.
A Constitution Without Constitutionalism
Since the rise of Xi Jinping to the presidency, the pace of legal reform in China has been frenetic. Even before he took office, Xi pledged that the project would be a key aspect of his presidency. It is a promise he kept; in contrast to previous leaders who employed “law” as a rhetorical device, Xi indeed has been ruthless and efficient in substantively revamping China’s legal and law enforcement structures.
Perhaps the earliest, and most visible, evidence here was a well-publicized corruption probe he launched against officials in the Party bureaucracy, which went after individuals regardless of stature. Meant to curb widespread profligacy among officials and restore public trust, Xi began a systematic purge of alleged grafters. The campaign reached its apogee with the recent arrest and imprisonment of Zhou Yongkang, once one of the most powerful men in China and a member of the all-important Standing Committee of the Politburo.
Meanwhile, Xi and the Party have also begun slowly raising the law’s public profile in other ways, both through legal and judicial reforms and through expressions of homage to the Constitution itself. We certainly have seen a good deal of the former recently---new death penalty procedures have been implemented, criminal defendants’ protections have been bolstered, and the court bureaucracy has been re-tooled. The Chinese Communist Party’s Fourth Plenum promised yet another spate of changes along these lines, too, which we noted on Lawfare earlier. Some big-ticket items include the institution of a new “circuit court” system, which would exercise jurisdiction across districts, and a mechanism for disciplining judges who decide cases in an inappropriate fashion. As if to complement the procedural reforms, high-level Chinese officials publicly play up the importance of both the Constitution and lesser Chinese laws. Xi Jinping did just that in a 2012 speech, which emphasized the Constitution as a guarantor of good governance. (Scholars and webizens have sounded similar notes to boot: for example, on the important Gongshiwang political forum site, an essay this week was entitled, “A Correct Understanding of the Party’s Leadership on Rule of Law.”)
As nice as all this might sound, China’s rulers are not looking to institute Western-style constitutional government in Beijing anytime soon. Rather, they are pursuing legal reform and stressing the Constitution for a self-interested reason: China’s political leaders believe that institutionalizing the rule of law will ultimately preserve the Party’s political preeminence. The move finds some precedent in China’s ancient history. Long ago, “Legalists”---the counterparts to the “Confucianists” in imperial government---had advocated a strict punitive system, one meant to shore up authoritarian regimes’ hold on power.
As I noted earlier, the Communist Party supports “rule by law” or “ruling the country according to law,” not the US’ “rule of law.” (Just like they encourage “ruling the country according to the Constitution,” but not “constitutionalism.”) The latter is seen as a Western idea in that it internalizes the precept that nothing is above the law, and that the law exists independent of any other political force. In contrast, “rule by law” and “ruling the country according to law” adhere to the contemporary, if awkward, constitutional structure of the PRC, which posits that it is the “supreme authority” but is also “under the leadership of the Communist Party of China.”
The Party intends to use the “rule by law” framework, hoping that increasing legal transparency and accountability will assuage the concerns of the population and further institutionalize their role in the governing system. But again, there appears to be no broad, liberal agenda in play. To the contrary (and to name but one example), the Communist Party is loathe to institute or even mention the concept of “judicial independence;” Western-style “judicial review” likewise is not a feature of the reformed Chinese legal process. And small wonder: Xi’s objective is essentially to fortify a “socialist” legal system that---despite some apparently salutary changes---still respects, and obeys, the whim of the Party.
Stressing the 1982 Constitution: A Long Term Risk for the Chinese Communist Party?
Nevertheless, for China’s governing elite, an increased focus on “rule of law” and the Constitution is still something of a gamble. And that is because the current Chinese Constitution has a relatively liberal flavor in some places, with its guarantees of freedom of speech, press, assembly, and its proclamation that “no organization or individual is privileged to be beyond the Constitution or the law.” It is certainly the most liberal of the four constitutions adopted since China’s independence in 1949; it reflected Deng Xiaoping’s effort to roll back excesses associated with Chairman Mao’s Cultural Revolution, and stressed the importance of China’s economic development.
As observers have pointed out, by so loudly touting the Constitution, officials might prompt citizens to demand that the government actually respect its liberal-sounding provisions. And that, in turn, stands to threaten the Party’s singular grip on power. It’s a tightrope for the government, who are pushing real reforms to the country’s judicial system and ringing in “Constitution Day” on the one hand, while on the other banning the very word “constitutionalism.” That perfectly ironic policy was justified on two grounds: first, the term has a “Western” connotation, which is anathema to Chinese communist ideology; and second, “constitutionalism” had started to gain some traction online.
Today is not just the 32nd anniversary of China’s 1982 Constitution. It is also the 9th anniversary of a public protest in Hong Kong that called for universal suffrage in the semi-autonomous city. The desire for free and unfettered elections that underlied those protests has not weakened with time. Indeed, it manifested again this year in a series of massive demonstrations that rocked the city, paralyzed its downtown and frustrated containment efforts by the Hong Kong government and Beijing. While the demonstrations appear to have abated for now, with three of the protests’ leaders turning themselves into the police, the demand for wider political participation is unlikely to recede in either Hong Kong or other Chinese cities, especially as the country continues to modernize. It is telling that even in responding to the protests, Xi felt the need to draw legal backing for Beijing’s decision, saying that Hong Kong must follow its constitution in pursuing political reforms. In light of the significant changes rocking China internally, the country’s changing legal structures and the recent rise of its Constitution in public discourse should be followed closely.