A tussle in China over the Communist Party bowing to the Constitution; A movement in China to make the Communist Party subordinate to the national constitution has conservatives fighting back

A tussle in China over the Communist Party bowing to the Constitution

A movement in China to make the Communist Party subordinate to the national constitution has conservatives fighting back.

By Peter FordStaff writer / May 24, 2013


It is hard to imagine bloggers and tweeters in most parts of the world working themselves into a lather of intellectual excitement about “constitutional government.” Yet in China last Wednesday, the phrase was a trending search term on the country’s most popular social media platform, Sina weibo, yielding nearly 6 million results. By Friday, official censors had deleted nearly three quarters of those comments, in a sign that the subject is of more than academic interest. Indeed, it poses a question central to China’s future: Could the ruling Communist Party maintain its grip on power if it respected the national Constitution?“Constitutionalism” has become a code word in China for broad political reform, including the rule of law. The concept is a battleground for liberals and conservatives vying for influence at the top of the Communist Party as a new government establishes itself in Beijing.

This week, in a salvo of strongly worded articles in the official press, conservatives launched a new offensive against the idea of constitutional rule. Reformers cringed, and the Internet lit up in angry response.

“Behind the words “constitutional government” hides the whole project of transforming Chinese institutions and politics,” explains Stephanie Balme, a professor of law at the Institut d’etudes politiques in Paris. “It’s the only way people can talk about politics.”

Red flag

The Communist Party’s bi-weekly Red Flag Magazine struck out on Tuesday with a theoretical article dismissing constitutional government as “not suitable for socialist countries.” The system “belongs to capitalism and bourgeois dictatorship,” argued Renmin University law professor Yang Xiaoqing, not to China’s “people’s democracy.”

The next day, Global Times, a tabloid belonging to the Communist Party, took up the cudgels. Constitutionalism was merely “a new way to force China to adopt Western political systems,” the paper said in an editorial. “Constitutionalism’s demands are deeply opposed to China’s current Constitution,” it added.

Such authoritative condemnations took reformers by surprise. The new president and head of the Communist Party, Xi Jinping, had raised their hopes last December with a speech in which he described the Constitution as “the legal weapon for people to defend their own rights.” He said the charter must be applied if it were to have any “life and authority.”

Then three months ago, just before taking over the presidency, Mr. Xi told a meeting of China’s top Communists that “no organization or individual should be put above the Constitution or the law,” according to Xinhua, the state-run news agency.

“Things seem to have quite dramatically changed,” since that meeting, says Zhang Qianfan, a constitutional law expert at Peking University and one of the leaders of the constitutionalist movement here. “They have decided to turn against constitutionalism, and that signifies the premature end to political reform” under the new administration, he adds gloomily.

Other observers, however, are less certain that the battle is over. “There is a massive groundswell of interest” among ordinary Chinese in “the idea of a Constitution limiting state power,” says David Kelly, founder of China Policy, a consultancy in Beijing. “And there are people at the top who see the writing on the wall.”

The Constitution has become a flashpoint, analysts say, because it’s a remarkably democratic document. It just has not been implemented since it was adopted in 1982.

‘Rights?’ Not really.

Article after article protects citizens’ rights such as freedom of speech and assembly – rights that are routinely violated. Reformers say they want nothing more than that the government should live up to its words. “Constitutionalism means nothing but the implementation of the Constitution,” says Professor Zhang.

Key to his demands is that the authorities should obey Article 5 of the Constitution, which reads, in part, “no organization or individual may enjoy the privilege of being above the Constitution and the law.”

Prominent real estate developer and widely-followed blogger Ren Zhiqiang put the argument succinctly on his weibo account on Friday. “Constitutionalism is very simple,” he wrote. “It means putting power in a cage and giving the key to the people.”

To traditionalists, however, this is unthinkable. In Professor Yang’s interpretation, “the Constitution sets the basic principle to uphold the Chinese Communist Party’s rule,” thus putting the party above the Constitution, she wrote in her Red Flag article.

“The Communist Party rests on the notion that nobody limits its power,” adds Dr. Kelly. “When they say that nobody is above the law, they don’t mean the party core,” even if that violates the stipulations of the Constitution.

“Everything is in flux,” says Keith Hand, an expert in Chinese law at the University of California, Hastings College of the Law in San Francisco. “There is great ferment and great debate in China over how you balance the party’s leadership with socialist rule of law and how you give some meaning to the rights set out in the Constitution. These are fundamental political questions that have not been resolved.”


Chinese scholar challenges party in constitutional debate

Friday, 24 May, 2013, 1:20pm

Patrick Boehler

A recent Communist Party circular, warning officials of “dangerous western values,” appears to have been challenged from inside the ranks of the party leadership in Beijing.

Those who have written the circular “consider the people’s legitimate calls for reform as activities by hostile forces and ‘dissidents’ and thus wrongly estimating and analysing the situation,” Yang Tianshi, a senior scholar and adviser, wrote in an essay shared online.

The Central Committee circular, briefing concerning the situation in the ideological sphere, or also known as “Document No 9,” has caused concern among Chinese liberals. It suggests the Communist Party might have taken a more conservative, authoritarian path in the first months of Xi Jinping’s presidency.

The document has not been published. Its content can only be deduced from reports on party cadre briefings, which appeared at the beginning of the month. These references have, however, mostly been promptly deleted from Chinese news portals, blogs and social media to avoid public debate.

Cadres should “strengthen the guidance of public opinion, purify the Internet environment, convey more positive energy, bring more positive voices,” the circular read, according to one such meeting reported in Xianyang [1]in Shaanxi.

Yang, a 77-year-old historian known for his research on Chiang Kai-Shek, is a member of the Central Literature and History Institute, an advisory body of senior academics to the State Council. He has shared his views with an acquaintance, who uploaded the essay online [2], where it has quickly gained attention.

Yang Tianshi. Photo from State Council websiteYang argues that those who wrote the circular mistook calls for more respect and enforcements of rights guaranteed in the Chinese constitution as calls for “westernisation”.

“For some time, people have called for the enactment and implementation of the constitution from 1982, to realise constitutional governance and have even called for the realisation of a ‘dream of constitutional governance’,” he writes.

“Many people have made suggestions in newspapers and on the internet, petitioned, jointly signed statements and even unfurled banners on the streets,” he wrote. “I think, these are all legal, reasonable, legitimate expressions of concern (…) for the rightful leadership of the Communist Party.”

China’s courts currently cannot enforce freedoms guaranteed by the constitution, such as freedom of expression and of the press.

Xi Jinping raised hopes for change when he participated at a ceremony commemorating the 30th anniversary of the constitution on December 4. This was one of his first high-profile speeches after assuming the party leadership in November.

“No organisation or individual has the privilege to overstep the constitution and the law, and any violation of the constitution and the law must be investigated,” he reportedly said [3].

A month later, journalists with the liberal Southern Weekly went on strike in Guangzhou to protest a censor’s deletion of their new year’s editorial. This had alluded to Xi’s speech and the “dream of constitutional governance”.

In February, hundreds of intellectuals signed a petition urging China to ratify an international human rights treaty it signed in the 1990s, which reiterates some rights guaranteed in the Chinese constitution.

Over the last weeks, several state-run publications have issued scathing rebukes [4] for such calls, saying they would lead to chaos and were aimed at copying a Western model.

“Those who drafted document number nine fail to realise that those who demand the ‘protection’ and ‘implementation’ of the constitution refer to the (Chinese) constitution from 1982,” writes Yang. They don’t want “the American constitution, and also don’t want to abolish the 1982 constitution and get another one.”

“A country’s citizens demand the protection and implementation of their own constitution, what’s wrong with that? Why not?”, writes Yang.

“An old intellectual can write these things, and it’s great that he does it,” said Wang Jiangsong, a philosophy professor at the China Institute of Industrial Relations in Beijing. “I can’t.”

About bambooinnovator
Kee Koon Boon (“KB”) is the co-founder and director of HERO Investment Management which provides specialized fund management and investment advisory services to the ARCHEA Asia HERO Innovators Fund (www.heroinnovator.com), the only Asian SMID-cap tech-focused fund in the industry. KB is an internationally featured investor rooted in the principles of value investing for over a decade as a fund manager and analyst in the Asian capital markets who started his career at a boutique hedge fund in Singapore where he was with the firm since 2002 and was also part of the core investment committee in significantly outperforming the index in the 10-year-plus-old flagship Asian fund. He was also the portfolio manager for Asia-Pacific equities at Korea’s largest mutual fund company. Prior to setting up the H.E.R.O. Innovators Fund, KB was the Chief Investment Officer & CEO of a Singapore Registered Fund Management Company (RFMC) where he is responsible for listed Asian equity investments. KB had taught accounting at the Singapore Management University (SMU) as a faculty member and also pioneered the 15-week course on Accounting Fraud in Asia as an official module at SMU. KB remains grateful and honored to be invited by Singapore’s financial regulator Monetary Authority of Singapore (MAS) to present to their top management team about implementing a world’s first fact-based forward-looking fraud detection framework to bring about benefits for the capital markets in Singapore and for the public and investment community. KB also served the community in sharing his insights in writing articles about value investing and corporate governance in the media that include Business Times, Straits Times, Jakarta Post, Manual of Ideas, Investopedia, TedXWallStreet. He had also presented in top investment, banking and finance conferences in America, Italy, Sydney, Cape Town, HK, China. He has trained CEOs, entrepreneurs, CFOs, management executives in business strategy & business model innovation in Singapore, HK and China.

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