This article by Zhang Qianfan was posted on the author’s blog on 22 August 2013. This blog is now no longer accessible. The current translation has been made on the basis of a reblogged version.
Since May of this year, anti-constitutionalist discourse has caused a stir. An extremely small number of people who call themselves “scholars”, propagate that “the crucial factors of constitutionalism are capitalist and not Socialist”, “it is a roundabout manner of denying China’s development model”, that in China “it can only be like climbing trees to catch fish” and other such viewpoints. In a short time, constitutionalism has become “a sensitive word”, it has become a conceptual “forbidden area”, after “the market economy”, “the rule of law” and “human rights”. In fact, this discourse with a fifties-sixties accent is contradictory from front to back, confused in its logic, ridiculously childish and not even worth refuting, but in view of the fact that it has confused public opinion, harmed the country and the people after its publication in mainstream media, it has gravely harmed the image of the governing party and the government, it seems that it is necessary to clarify the basic idea and common knowledge about constitutionalism, in order to ensure correct understanding of the facts, distinguish right and wrong, and clarify true and false. The author believes that in constitutionalism, there is not only no difference about whether “it is surnamed Socialist or capitalist”, but it has an irreplaceable function for China’s social stability and the long-term governance of the governing party.
This article, written by Zhang Qianfan, was posted on 22 August 2013.
I, What is meant by “constitutionalism”
What is constitutionalism? When opening up China’s 1982 Constitution, the answer is obvious. Apart from the basic objectives and the principles of the State provided in the Preface and the general programme, the Constitution mainly contains provisions in two areas: the structure of citizens’ fundamental rights and government powers, and operational procedures. In other words, the Constitution provides what government may and should do – the power to implement the provisions of the Constitution, it has also provided what it may not and should not do – it may not infringe the rights that the Constitution has endowed upon citizens.
What is called constitutionalism is nothing but implementing these provisions from the Constitution and constraining government power in this way. It is similar to the rule of law and ruling the country according to the law, constitutionalism is ruling the country according to the Constitution and governing according to the Constitution. In fact, constitutionalism is one part of the idea of rule of law, because the “law” in the rule of law evidently also includes the Constitution, and so ruling the country according to the Constitution and using the Constitution to impose standards on the use of political power, is the dictionary meaning of constitutionalism. According to the “American Heritage Dictionary” definition, constitutionalism is “the political system whereby government power is allocated and limited by the legal system to which rulers must submit”. This, it can be seen that constitutionalism is a state of affairs in which the Constitution is implemented and effectively restrains political power. In the commemorative conference for the 30th anniversary of the promulgation of the Constitution that was organized on 4 December 2012, General Secretary Xi Jinping stressed that “the life of the Constitution lies in its implementation, the authority of the Constitution lies in its implementation”, which is exactly the primary stress of those calling for constitutionalism up till now.
Similar to the rule of law, constitutionalism itself cannot be called “surnamed Socialist or capitalist”. As early as more than twenty years ago, after Deng Xiaoping’s southern tour, the question of “the surname Socialist or capitalist” was already resolved, bringing it up again now is not only obsolete and past its date, it also is contrary to common sense. As everyone knows, the market economy is not patented by capitalism; Socialist countries can also perfectly have it, adding a “Socialist” as a prefix, and it becomes their own market economy. The rule of law also is not patented by capitalism, and by adding “Socialist” in front, it can become the rule of law of Socialist countries. So why must constitutionalism so stubbornly be called “surnamed capitalism” and can it not be “surnamed constitutionalism”? The constitution that we must implement clearly is not the U.S. Constitution of 1788, but the Constitution of China of 1982; implementing a Socialist Constitution naturally is Socialist constitutionalism. Is it possible that this is mistaken? The anti-constitutionalists, until today, have not been able to come up with one reason why.
II, The social harm of anti-constitutionalism
The anti-constitutionalists seemingly hold that they want to safeguard a purebred “Socialist system” and a “Chinese development model”, in fact, this brings a hundred injuries and not a single advantage to the country and the people. When looking in the broad sense, the anti-constitutionalist discourse brings dangers in at least three areas. First, it destroys the effect of the Constitution, and assists constitutional nihilism; second, it overturns the legitimacy of the political system and causes the governing power to lose its legal basis; third, it destroys social stability, and shakes the social basis for long-term governance.
Destruction of the effect of the Constitution
The anti-constitutionalists have an illogical starting point, which is that they sharply separate constitutionalism and the Constitution; on the one hand, they do not spare efforts to tar constitutionalism as “capitalist”, and a Western model that does not conform to China’s “national circumstances”; on the other hand, they do not dare to openly oppose the current Constitution. This sort of viewpoint is extremely absurd and ridiculous, because constitutionalism merely is the implementation of the Constitution, anti-constitutionalism necessarily means opposing the Constitution. At least, they deny the legal effect of the Constitution, they want to reduce the Constitution to a political slogan that does not need to be implemented, or an empty document that does not matter. The essence of this sort of viewpoint is constitutional nihilism. The subtext is that, although this country has formulated a constitution, in fact, that inly is a word game to dupe the people; China in fact does not have any constitution, and State power is not under any legal constraint.
Overthrow of the basis for the legitimacy of the political system
Constitutional nihilism not only lacks theoretical logic, it also can engender real legal effects, which are the denial of the basis for legitimacy of the current regime. It is as Kelsen pointed out, states are creatures created by law: “The State is a community created by the domestic legal order, as a legal person, State is the personification of this community or the domestic legal order constituting this community.” [Hans Kelsen, General Theory of Law and State, translated by Shen Zongling, Beijing: China Encyclopaedic Publishing House, 1996, p. 203.] Because of this, State power must be exercised under the cover of law. The legitimacy of a State is not reflected in the power that the government exercises. Quite the opposite, State power must come from legal authority, the law endows the State with legality and legitimate power. The Constitution is the highest law, it is the yardstick to differentiate good law and bad law, and is the ultimate source of State legitimacy. In the present world, only the United Kingdom and a small number of other countries do not have a written constitution, the legitimacy of their regimes come from the “Magna Charta”, the “Bill of Rights”, the “Human Rights Act” and other fundamental laws, as well as constitutional practice. The absolute majority of countries has a written constitution that acts as a legitimate basis of public power. With regards to these countries, if the constitution exists in name only, all State organs provided in that constitution find themselves in a condition of illegality.
The Preamble of China’s 1982 Constitution has provided the leading position of the governing party, the third Chapter again stipulates the structuring of the national and all local levels’ People’s Congresses and their Standing Committees, the State Council and all levels’ local governments, all levels’ courts and procuratorates and other such government organizations. If the Constitution is a mere scrap of paper, and does not have any legal effect, the country actually operates in a situation where it does not have a constitution, and the legitimacy of all these organs would face question marks, the power that they exercise would also completely lose its proper basis for legitimacy. If the legitimacy of the existence of National People’s Congress and its Standing Committee is in doubt, the laws that they pass also do not have a proper basis. In other words, if we would follow the anti-constitutionalist standpoint, we would all live in a country without laws. Is this the attitude that we should take towards the nature of our own Constitution, laws and regime?
Shaking the social basis for long-term governance
The anti-constitutional viewpoint not only denies the leading position of the governing party and the theoretical legitimacy of the regime, it also damages social stability, it produces social turmoil and other such grave consequences, and thereby corrodes and shakes the social basis for long-term governance. Saying this is absolutely no sensationalization. Think a little, what does a constitution do? A constitution is the basic law guaranteeing citizens’ rights, and “rights” are not a gaudy concept, but it is a personal interest directly affecting every single one. If there is no protection for private property (Article 13 of the Constitution), the people’s land can be levied at any time and housing can be demolished at any time; if the right to equality cannot be implemented (Article 33 of the Constitution), peasants and peasant workers would suffer discrimination, and the children they take with them can not attend school or participate in the college entrance exam… If democratic elections (Article 34) exist in name only, People’s Congresses cannot vigorously exercise their functions, and government officials who are not responsible to the people will inevitably abuse public power; if there is no freedom of speech, publication, assembly or association (Article 35 of the Constitution), the people cannot speak out when their personal interests are harmed, and the abuse of public power will be even more brazen and unbridled…
If the Constitution does not have effect, government power is not subject to constitutional constraints and the people’s constitutional rights are not guaranteed, than the fundamental rights of the common people will be in a precarious state, and can be stripped away by public power at any time. Such a society cannot be happy, peaceful and stable, but will inevitably be flooded with coercion, demolitions with bloodshed, injustice, hatred and conflict… Social tragedies and nasty incidents will occur one after another, collective petitioning and large-scale mass incidents will get worse and worse. May we ask how such a country is to be ruled? How long-term governance will be possible? Long-term governance is established on the basis of social stability and the common will of the people, but if public power is not subject to constitutional constraints and the people’s basic interests cannot be effectively guaranteed, then the people cannot endorse the ruling party, and the popular will and social basis for long-term governance will be lost. This it can be seen that if we adopt the anti-constitutionalist viewpoint, in the end, this will make the regime at the same time lose theoretical legitimacy and practical legitimacy.
III, The political and social significance of moving constitutionalism forward
As constitutionalism is connected to the happiness of the entire people and the stability of the regime, promoting constitutionalism is the primary task of the State. Looking across the experiences of China and various countries worldwide, promoting the building of constitutionalism brings important benefits in at least the following five areas: first, it benefits stimulating governance according to the constitution and the legalization of the governance model, and the completion of the transformation from a revolutionary party to a governing party; second, it benefits guaranteeing and controlling the legitimacy of legal norms and policies, and the prevention of legal norms that infringe citizens’ rights; third, it benefits safeguarding the image of the governing party and the government, and thereby the legitimacy of long-term governance; fourth, it benefits safeguarding the authority of the centre, and controlling unlawful acts in the localities through the rule of law; fifth, it raises the constitutional consciousness of the entire people, and lets the people see the purpose of the Constitution in protecting their rights and actively safeguarding the effect of the Constitution.
1. Stimulating governance according to the law and the legalization of the governance model
First and foremost, constitutionalism is the implementation of the Constitution and governing according to the Constitution, governing according to the Constitution is helpful in stimulating the legalization of the governance model, it helps the governing party to complete the transition from a revolutionary party to a governing party in the true sense of the word. What cannot be denied is that before 1949, the Communist Party openly expressed great amounts of constitutionalist ideals, it expressed a strong pursuit of constitutionalism, but after taking political power in 1949, because of the fact that it never completed the legalization of its governance model, it remained a revolutionary party to a large extent, so that for thirty years afterwards, there were incessant political campaigns, which gravely weakened the legitimacy of its governance. In 1978, reform and opening up pulled open the curtain of reform of the governance model, and the promulgation of the 1982 Constitution symbolized a milestone in governing according to the Constitution. The Preamble of the Constitution clearly provides that the Constitution is “the basic law of the country, it has the highest legal effect. The people of all ethnicities in the entire country, all State organs and armed forces, all political parties and all social organizations, all enterprise and undertaking organizations must take the Constitution as the fundamental norm for action, are responsible to uphold the dignity of the Constitution, and have the duty to guarantee the implementation of the Constitution”. This declaration clearly and without mistakes proclaimed the determination of the governing party to promote constitutionalism. As the Constitution has “the highest legal effect”, the Constitution should be effectively implemented, just as ordinary laws are; no person, organization or party may act in excess of the Constitution, and especially the governing party itself must act within the framework of the Constitution.
Some people put forward that constitutionalism does not conform to China’s system, because constitutional supremacy denies the leadership of the Party. This sort of argument goes against common sense, because what is the basis for Party leadership? It is not elsewhere, it is in the Preamble of the Constitution itself. It the Constitution is denied, the leading position of the Party provided in the Preamble of the Constitution is inevitably denied as well. Evidently, only by respecting the Constitution and implementing constitutionalism is it possible to provide a legal basis for the leadership of the Party. Some people continue by asking how, if constitutional supremacy is established, should the relationship between the Constitution and the governing party be regulated? How is the leading position of the Party guaranteed? Does the crux not lie in Party leadership itself, but in in how the Party leads? Does it lead through the Constitution and the law, or do the Party leaders lead individually in a situation where they pay no regard to the Constitution and the law? If it is the latter, not only do we not have the rule of law, but we also do not have collective Party leadership, what we have is undisguised rule of man, because this clearly violates the principles of the rule of law that the governing party itself has already accepted long ago, and that are determined in the Constitution. As early as 1987, China had made this question clear in theory, the Party’s leadership is mainly reflected in the fact that the governing party leads the parliamentary system in formulating fundamental policies, the Constitution and the laws are all formulated and passed under the leadership of the governing party, but the governing party should not directly interfere with concrete law enforcement and the judicial process, otherwise, this would violate the principles of the rule of law that the governing party itself affirmed and committed to. Constitutionalism is helpful in even more effectively ensuring that the will of the governing party is reflected in the Constitution and the law, and so not only is there no contradiction with the leadership of the Party, it actually reflects and strengthens Party leadership. As long as the governing party controls the legislative process, and guarantees the implementation of the Constitution and the laws through effective mechanisms, it will fully guarantee its own leading position and role.
In fact, if governance according to the Constitution cannot be realized, then the Constitution will not just only exist in name, the leading position of the governing party itself has no guarantee, and furthermore, the rule of law will remain empty prattle. This is because the Constitution stipulated the “one government, two courts” system under the People’s Congresses, and stipulated the election and independent judicial systems; if these systems are not implemented, then People’s Congress representatives will not have the heart to carry out their legislative and supervision duties, Party and government power will be highly centralized, the judiciary can be interfered with at any time, and it will be impossible to realize the constitutional concepts of “ruling the country according to the law” and “a rule of law country” that the governing party itself already identified itself with earlier. Because of this, although the rule of law is the basis for constitutionalism, between constitutionalism and the rule of law, there is merely a relationship of different levels and stages, constitutionalism at the same time is the institutional guarantee for the rule of law; without a constitutional basis, power structures are highly centralized, and the rule of law will not meet basic conditions, in the end, this can only change into rule of man. Only by promoting constitutionalism is it possible to realize the legalization of the governance model, and complete the transformation from revolutionary party to governing party.
2. Guaranteeing the legitimacy of the legal system
As China’s highest law, the effective implementation of the Constitution is helpful in rationalizing the State legal system, guaranteeing that all legal norms are benign laws respecting citizens’ rights and not bad laws infringing citizens’ rights, and prohibiting any sort of evil deed violating the Constitution and the laws. Article 5 of the Constitution provides that: “no law, administrative regulation or local rule may conflict with the Constitution. All State organs and military forces, all political parties and all social organizations, all enterprises and undertaking organizations must respect the Constitution and the laws. All acts violating the Constitution and the laws must be prosecuted. Nor organization or individual may have privileges in excess of the Constitution and the laws.” If all levels’ legal norms are good laws, then officials’ abuse of power will lose its legal basis, the infringement of the people’s rights by officials would become a simple question of administrative law, and the current rule of law framework would be sufficient to resolve it. This would not only safeguard the people’s interests, but would also uphold social stability, and let a good image of the governing party and the government be maintained in people’s hearts.
3. Safeguarding social stability and the social base for long-term governance
As stated earlier, only when public power is subject to effective constitutional constraints will the people be happy, will the country be safe and healthy, and will society be stable. Only when society is stable can the regime be consolidated, and will there be a social basis for the long-term governance by the governing party. The Constitution is not only the most effective tool for stability maintenance, it is also a legal source for the leading position of the governing party and an institutional precondition for long-term governance.
4. Safeguarding the authority of central laws, effectively controlling local law-breaking
Promoting constitutionalism not only benefits safeguarding the basic rights of the people, it also benefits raising the legal authority of the Centre. At present, the reason why the implementation of some Centre decrees is weak mainly lies in the fact that local vested interests have set up layers upon layers of obstructions; “above, there are policies, below, there are countermeasures” has become normal, this gravely weakens the authority of the Centre and the laws. In the final analysis, the reason why it is difficult for Centre decrees to be implemented smoothly without impediments is first and foremost due to the fact that the Constitution is not implemented. The basic law with the highest effect is difficult to implement, which means that the formulation of laws and the implementation mechanisms provided in the Constitution exist in name only, and the fate of common laws can be well imagined.
5. Raising the rational capacity and constitutional consciousness of the entire people
Finally, constitutionalist practice also is an extremely good education for the people, it benefits further arousing citizens’ rights defence consciousness and their enthusiasm about the Constitution, and provides a strong social driver for the implementation of the Constitution. Although China’s civil society has seen huge developments in the thirty years of reform, it still is insufficiently rational and mature for many kinds of reasons; the rapid development of the network has greatly stimulated Chinese citizens’ rationality and their right to know, but there is also no lack of unreasonable “angry youths” online. The fact that public power is unconstrained causes officials not to talk reason, officials being unreasonable insidiously foments unreasonableness among the common people; the common people are only obedient citizens, unruly citizens or rebellious citizens under a power structure, they are not citizens who are able to exercise their constitutional rights and restrain the abuse of public power, and so the abuse of power is further connived at… To destroy this sort of vicious circle, it is first and foremost necessary to change work styles within the government; if the government implements constitutionalism in good faith, and the people see hope for the implementation of the Constitution and the protection of their rights, and they learn how to apply the Constitution in their daily lives through the process of concrete implementation, ever more people will believe in the Constitution and consciously defend their rights. Only if the people arise and actively defend their rights can the Constitution truly be effectively implemented.
IV, As a conclusion – Establishing a more effective constitutional review mechanism
To summarize the above, constitutionalism brings a hundred benefits and not one injury to the people, the country and the Party; whether or not the current Constitution can be implemented relates to the fundamental interests of the country. The anti-constitutionalist standpoint wants to further vitiate the current Constitution, this utterly goes against common sense. On the other hand, it cannot be denied that more than thirty years after the promulgation of the current Constitution, it has not been effectively implemented, and this has fomented a number of irresponsible standpoints. The direct cause for why the Constitution has not been implemented for such a long time lies in the fact that constitutional supervision mechanisms are not rational, leading to the constitutional interpretation mechanism of the People’s Congress Standing Committee not having been initiated so far, it is not necessary to give details here. [See Zhang Qianfan, ‘Establishing a Review System for Legal Norms in China – Also an Exploration of Constitutional Revision Theory’, Strategy and Management, 2004, No. 2, 61-69.] In order to completely implement the current Constitution, the present author suggests here to establish a more effective constitutional review mechanism, the establishment of a constitutional committee under the National People’s Congress, which would be composed from persons having judicial qualities, which would openly and independently express its opinions, and be responsible to the National People’s Congress and its Standing Committee [For details, see id.]
Perhaps some might rise the question whether or not a constitutional committee system would conform to the current constitutional framework? Or whether or not it would “strip away the leadership of the Party”? As indicated earlier, as constitutionalism and Party leadership are not mutually exclusive, the concrete mechanisms to implement the Constitution will also not directly conflict with Party leadership. Naturally, specific judicial review models may not conform to concrete constitutional provisions, for example, does the constitutional court model conflict with the parliamentary supremacy? This question can be explored, but it has no direct relationship with the leading position of the Party. It is especially unnecessary to worry about the constitutional commission model, because it would be responsible to the parliament, and thereby indirectly operate under the leadership of the Party. To this end, “stripping away Party leadership” and all other fears actually are groundless, and can only obstruct the early implementation of the current Constitution. Even more constructive measures would be driving out imagined political fears through steady institutional design and gradual introduction of constitutionalist practices, to let the people and the governing party really learn about the benefits of implementing the Constitution.
In fact, our neighbour, Viet Nam, has already put forward similar viewpoints during its constitutional review process. Vietnam and China are both Socialist countries, the basic characteristics of both countries’ constitutions are exceedingly similar. What is different with China’s constitutional strategy is that the Constitution of Vietnam clearly provides in Article 4 that the Vietnamese Communist Party is “the leading power for the country and society”. In the most recent constitutional revision process, some officials believed that a constitutional review system does not conform to the leading position of the Communist Party provided in Article 4 of the Constitution, but the constitutional review draft finally still added a design for a constitutional committee, it can be seen that the abovementioned question no longer is a problem in Vietnam. In the current stage, Vietnam might well first establish a constitutional committee within its national assembly, to be responsible for the daily work of reviewing the constitutionality of legal norms, and to be responsible to the assembly; the assembly may, through majority voting, rescind the decisions of the constitutional committee that believes to be mistaken.
Apart from the fact that constitutionalism brings huge benefits to this country, establishing an effective constitutional review system will also benefit stimulating the gradual rationalization of national governance. At present, State documents fill the air, new emperors bring in a new wave of ministers, dynastic decrees are changed nightly, their policy nature is too strong, they are insufficiently continuous, and they do not preserve any long-term thing. The establishment of a constitutional review system will change this sort of situation. On the one hand, the absolute majority of legal norms that undergo review will meet with constitutional approval from the constitutional committee, which further strengthens the propriety and political authority of these legal norms. On the other hand, the constitutional committee’s respect for precedent will be able to stimulate governments to pay more attention to the long-term influence of scholars in policy, form a continuously advancing and rational development plan, and thereby produce precedents and institutions that will last for a hundred generations. Only in this way will it be possible to lay a solid institutional basis for constitutionalism in China.
(The author is a Doctor in Government Studies and a Professor of Constitutional Law at Peking University)