More than 30 years since the last draft of its Constitution, a debate is brewing in China about constitutional government and whether it could work in this country, where the Communist Party single-handedly rules.
The debate over constitutional government has long been code for political reform and is a topic that, until now, was discussed more by liberals and academics. But, remarks late last year by China’s new leader Xi Jinping in support of the rule of law has rekindled the debate and raised expectations.
And when conservatives launched a counter-attack, saying that constitutionalism was a western conspiracy and not important, the debate got even hotter. On China’s Twitter-like Sina Weibo microblog, the issue became a trending topic and garnered millions of comments.
China’s middle class is growing and economic reforms have raised the quality of living. Chinese have more freedoms today than ever before. But still, officials are perceived as being above the law. Rising corruption, abuse of power and the loose implementation of this law are undermining the Communist Party’s legitimacy.
"The question is whether this is rule of law or the rule of man," said historian Zhou Duo.
Constitution or party first
Shortly after taking over late last year as secretary general of the Chinese Communist Party, President Xi Jinping said any country ruled by law should first be ruled by the Constitution.
“No organization or individual has the special right to overstep the Constitution and law, and any violation of the Constitution and law must be investigated," Xi said, speaking at a celebration marking the 30th anniversary of the implementation of China’s 1982 Constitution in Beijing.
Despite those words, Li Datong, a former journalist and political commentator said the gap between the law and how it is implemented in China is still very large.
“Can the Supreme Court put the Party Secretary on trial? Of course it cannot. Can the Court at any level put the Party on trial? Of course it cannot. If a citizen wanted to sue Party officials, no court would listen to him," Li said.
Conservatives say there is no need for change.
In one of the recent articles that helped spur the debate, the Communist Party journal Red Flag Manuscript argued that constitutionalism should never be implemented in China.
“Constitutionalism belongs to capitalism and capitalist dictatorship, not to social democratic system,” the article said.
The Global Times added that the resurgence of demand for constitutionalism is, in fact, a plot to overthrow the current Chinese political system.
All talk, no action
Despite the president’s remarks, China’s new leaders have to take steps to promote new reforms.
Magazine editor/publisher Li Datong doubts they will.
“The Party never thought it could be surpassed by the Constitution, that’s why it adopted a Constitution to fool the people and intellectuals,” he said.
Even though Article 35 of the 1982 Constitution states that “citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration” the party ultimately decides what can be said and when gatherings can take place.
Li knows this from personal experience. In 2006, the magazine he published as an editor, Freezing Point, was shut down because it ran a series of articles on controversial topics such as demolitions and corruption.
At the time, Li Datong took his case to the courts to appeal the decision.
“When I sued them I knew it wouldn’t work but I needed to let people know what was going on, to record history,” he explained.
Production of history
The 1982 Constitution was penned under the leadership of reformist Party Secretary Hu Yaobang. And while it mentions in its preamble that China will adhere to people’s democratic dictatorship and follow the socialist road under the leadership of the CCP, it does provide guarantees for basic rights.
Its Article 5 states that no organization or individual enjoys the privilege of being above the law, and Article 41 states that citizens have the right to criticize any state organ or official.
The 1982 Constitution is a product of history and was written at a time when China was transitioning out of Maoism and the total absence of law, said Chinese historian Zhang Lifang.
“The generation of leaders of Hu Yaobang started reflecting about the importance of the rule of law, because they’d also been the victims of rule of man and were still in agony. They’d all experienced the lack of Constitution and human rights during the Cultural Revolution.”
"Rule of Law" or "Rule by Law"
But while the architects of the 1982 constitution saw the importance of a legal system, the document was more about establishing ‘rule by law’ rather than ‘rule of law.”
“Marxism and Leninism is still the guiding ideology of the Chinese Communist Party, of course if we rule the country through class struggle, armed revolution, proletarian dictatorship obviously we have chaos,” said Chinese historian Zhou Duo.
Marxism doesn’t consider at all the rule of law, human rights or constitution; it fiercely denies these principles, he said.
“This is China’s biggest problem; this is the reason why we have severe violations of people’s rights, why we cannot implement political reforms and why China’s reform process meets so many obstacles,” Zhou said.
Tiananmen dead end
The debate has peaked as China marks 24 years since the Communist Party’s bloody crackdown on protesters in Tiananmen Square. As the anniversary approaches, some are reflecting on the leadership that initiated the process of reforms and looking to President Xi Jinping to embrace that vision once again.
But change will not come easy. The stalemate that China is in now began in the late 1980s with the Party’s crackdown on pro-democracy protesters in Tiananmen.
“What happened at the end of the 80s, and after the death of Hu Yaobang, changed everything. The party realized that in order to keep ruling they had to secure their right to power with an iron fist,” said Zhang Lifan.