Why is “Constitutional China” still an unfulfilled dream?
Written on Oct 10, 2011 by He Qinglian
(translated by krizcpec, Slight modifications made on Oct 17, 2011)
Among the things being discussed in marking the centenary of Xinhai Revolution, an important topic is that despite having implemented constitutions over the course of a hundred years, China remains unsuccessful in its attempt to become a constitutional country. And the Chinese could probably set a world record for the effort they made in implementing constitutions: altogether fourteen constitutions had been enacted in over a hundred years, yet the country is still unable to bring about constitutionalism after having a constitution in place; and that the enactment of a constitution remains the easy task when compared to the implementation of constitutionalism, which remains an impasse.
Since its came to power, between the thirty-three years from 1949 to 1982, the CCP had enacted altogether four constitutions, which are called “Constitution 1954”, “Constitution 1975”, “Constitution 1978”, and “Constitution 1982” respectively. And “Constitution 1982” is the current constitution.
December 4, the day that “Constitution 1982” came into existence, was designated as the Legal Publicity Day, a gesture to show the authorities’ attention to the “legal system”.
There was a time when Beijing proclaimed to “rule by law” made Western countries like the United States see the bright prospect of China entering into the big family of modern nations following the principle of rule of law; and lawyers in the country started a few years back a movement to “uphold the constitution and safeguard the [people’s] rights”, with the hope that this constitution can help those who interests got violated to defend their own rights.
Yet, just as former president Liu Shaoqi, with a copy of “Constitution 1954” in his hands, could not get a chance to defend himself on August 5, 1967; households facing forced demolition these days, holding high “Constitution 1982” in their fight with the local governments and the demolition teams, would not be able to avert the tragedy of their home being destroyed, and their lives taken away.
That is because whichever constitution of China it may be, they all lack in themselves the belief sovereignty in the people, and the institutional environment they are in is one that the concept of ‘rule of law’ has no supremacy.
Of the four constitutions established by the CCP, it was “Constitution 1954” that earned most praises from the legal sector. Some in the sector thought that although “Constitution 1954” pioneered the law drafting model that the ordinary persons guided the experts, the way it was enacted remains an example in both openness and democratic nature for today’s legislation works.
The so-called openness referred to the 1.18 million comments and proposed changes the legislation organ received in less than three months after the draft of the constitution was released on June 16, 1954.
Mao Zedong, leader of the constitution drafting group, was not happy with the word “demonstration” in the article which stated that “Citizens of the People's Republic of China enjoy freedom of speech, freedom of the press, freedom of assembly, freedom of association, freedom of procession and freedom of demonstration”. “Better be omitted”, he wrote on that word. Mao also explicitly opposed the wording “freedom to change their residence” in that draft. The group did not take in these comments. That's the so-called “democratic nature”.
In fact, even though Mao had generously granted these dummy rights, the Chinese people never enjoyed any of them.
There are intrinsic differences between China’s “rule by law” and Western countries’ “rule of law”, the most fundamental one lies in the varying perceptions of the legitimacy of source of power: while “rule of law” stresses that the sovereignty rest with the people, and that all are equal before the law; “rule by law” emphasizes the divine right of kings, “sons of Heaven” who have the rights to punish in the name of heaven and to govern.
Having successfully “found a republic” in 1949, the CCP cited that achievement as the reason to legitimize its right to rule the country. And it inherited from the imperial China the cultural characteristic that allow rulers to be above the law, which in the eyes of the CCP serves only as a tool to control the masses, and not as standards that bind the behaviors of the rulers.
For this reason, the four constitutions since CCP established its own government—their true nature should be defined as political bouquets to showcase to the world “the New China under the CCP is a modern country”, rather than as the fundamental law of the country promulgated in the preparation of implementing constitutionalism.
What exactly are the missing pieces?
Some may argue that Chinese culture and that of the West is different in nature, I think then maybe I could cite India and Japan as examples, to compare them with China may be a way that is able to reveal the true reason for China's failure in implementing constitutionalism.
FIRST, the concept sovereignty in the people is always absent in China's political beliefs. To this date, those in power still do not want to change that. They still see themselves as the natural representatives of the people.
Let's look at Japan, the country which political beliefs were once identical with those of China, believing even more deeply than China in the divine right of kings. Because emperors of Japan are descendants of a single unbroken line, they are more divine than those of China, where changes of dynasty occurred.
After the Second World War however, The Constitution of Japan affirms such basic principles as sovereignty in the people, stipulating that Japan implements a parliamentary (cabinet) system on the basis of separation of powers, and that the emperor is the symbol of Japan and of the Japanese people.
The Japanese people is reputed for their seriousness in abiding by the law, their constitution would naturally not be empty words on paper once it is established.
China during the late-Qing era did not grasp the essence of Japan's Meiji Constitution, now it would surely not learn from this constitution of Japan that rests sovereignty with the people. In fact, the antipathy [the CCP] had toward the role U.S. played in the enactment of the Constitution of Japan after the Second World War was so strong, even stronger than the Japanese people themselves would have felt that [in an attempt to ensure the U.S. won't have the chance to do the same in China what it did in Japan and also to make sure the power would remain firmly within its grasp] it defined the political principles of the constitution with wordings translated as follows:
“Communist Party of China is the sole ruling party of China. The People's Republic of China was founded by the Communist Party of China, which was, is and will remain the leader of the Chinese people”
(Peculiar though, such wordings are found not in the constitution itself but in a web page about the constitution on Xinhua.com (Screenshot), date retrieved: Oct 14, 2011–translator note)
This is why I never comment on the Chinese effort to “uphold the constitution and defend their rights”.
SECOND, the authorities of China have always been making poor decisions regarding to what they should learn and adopt from the West. And they whitewash that as “throwing away the bath water”, believing that their decisions were impeccable. The thing is, the standard the Chinese employ in separating the babies of other civilizations from their bath water is problematic.
And now let's look at how India learned from the West,
The U.S. Constitution had great influences over the enactment of India's constitution, the most influential of all being the guiding principles and the basic philosophy of the declaration of the human rights. From 1946 when the enactment progress began, to the passage of the constitution on November 26, 1949, it took India three years to establish its own constitution.
In the process, India gathered all texts of constitutions on the world for reference purposes. Dr. B. R. Ambedkar, chief drafter of the Constitution of India, said at the Constituent Assembly that learning from others is not something to be ashamed of, because no one has monopoly on the basic thoughts of constitutions.
The basic rights of the people was the area debated most heatedly in the drafting of India's constitution, and was also the part that got criticized the most. At that time, many Indian politicians thought that the rights of the people was the bath water of Western cultures, something that India should not learn from. But after thirty-eight days of agitated debates , it was eventually passed and written into the third part of the constitution.
The CCP however, learned religiously from only the USSR and maintained a critical stance towards all other countries. In 1949, when the CCP was close to its goal of seizing power, the Central Committee of the CCP issued on February 28 The Directive on the Abolition of the Six Codes and the Establishment of Judicial Principles in the Liberated Areas, and made it clear that the Six Codes “should be regarded as laws that are basically not in the interests of the people” , and—
“the judicial organ should educate and transform judicial cadres with the spirit of constant contempt for and a stance critical of the Six Codes and all other reactionary laws and regulations of the KMT; of constant contempt for and a stance critical of laws and regulations of capitalism countries in Europe, America and Japan that are against the people; and by means of learning and grasping Marxism–Leninism, Mao Zedong's thoughts on the nation, the law, his New Democracy and policies, programs, laws, orders, regulations, and resolutions that came from it.”
In brief, the CCP had formulated a political principle that the critical stance toward constitutionalism and the legal system of the West was a must even before it understood what they really were.
This critique of Western civilization has not ended.
Represented by American democracy, the democratic political system that rest the sovereignty with the people, and the idea of human rights are still seen as the “bath water of Western civilization” and they would never be applicable in China.
Nothing illustrate this more clearly than the five “Nos” proclaimed in March this year by Wu Bangguo, Chairman of the NPC: no multiparty elections, no diversity in guiding thought, no separation of powers, no federal system and no privatization.
Starting from 1908 when the imperial Qing government promulgated the Outline of Imperial Constitution (known as China’s first constitution), the learned Chinese had begun their hundred-year-long pursuit of the constitutional dream. But so long as the thought “Sovereignty in the People” is still seen as the “bathwater” of Western civilizations, constitutionalism would remain far and away from the Chinese people.