Climbing trees to catch fish: A curious to-and-fro about China’s constitution bodes ill for political reform

Climbing trees to catch fish: A curious to-and-fro about China’s constitution bodes ill for political reform

Aug 17th 2013 |From the print edition


FOR well over a century, Chinese scholars have been arguing about national constitutions. In the final years of the Qing emperors, some thought that turning the last imperial dynasty into a constitutional monarchy might forestall its collapse. Conservatives long resisted. But in 1906 a “constitutional reform commission” did report to the Empress Dowager, Cixi. “The real reason”, it concluded, “why other countries have become wealthy and powerful lies in the fact that they have a constitution and decide [important issues] through public discussion.” The dynasty collapsed in 1911. But these days the Communist Party seems to think those Qing reformers were wrong: China does not need a constitution at all, or at least not one that has to be enforced.The People’s Republic of China, founded in 1949, is in fact on its fourth constitution. Yet since mid-May the official press has turned an academic debate about “constitutionalism” into a political campaign against the idea that every institution, ie, the party, should be subject to the constitution—an idea so preposterous, thePeople’s Daily argued in one of three front-page editorials this month, that it was “like climbing trees to catch fish”. The paper said that constitutionalism is a plot hatched by American intelligence agencies. What is more, America’s smugness about its own constitution is misplaced, since the document’s purpose is to “guarantee the fundamental power of the bourgeoisie”.

So there. But why these archaic leftist rants should appear now is puzzling. The reaction to liberal-sounding utterances by the party’s new leader, Xi Jinping, last December may have something to do with it. In a speech to mark the 30th anniversary of the present constitution, he gave as good a defence of constitutionalism as any, by quoting the 1982 version’s Article 5: “No organisation or individual has the privilege to overstep the constitution and the law”. Mr Xi seems since to have changed his mind. But his intervention back then has encouraged those hoping for a political opening.

In its New Year’s Day edition Yanhuang Chunqiu, an intellectual journal, equated constitutionalism with political reform. It argued that, however imperfect the constitution, “as long as it is satisfactorily implemented, our country’s reform of the political structure will make a great step forward.” The journal’s website was taken offline for a few days. The same month, a liberal newspaper, Southern Weekend, was censored for advocating constitutionalism, prompting a rare strike by its journalists.

The constitution has much for liberals to like: equality; freedom of speech, assembly and religion; respect for human rights; the prohibition of arbitrary detention; an independent judiciary; and an elected National People’s Congress—“the highest organ of state power”. Of course, it doesn’t really work that way.

For a start, the all-powerful Communist Party is largely absent from the constitution. The only references to it are in the discursive preamble, beginning, as do countless official briefings: “China is one of the countries with the longest histories in the world.” It proceeds to extol “the leadership of the Communist Party of China and the guidance of Marxism-Leninism and Mao Zedong Thought”. Some Chinese writers have asked what force the preamble has, and whether it is necessary. The People’s Daily seems to think it is the constitution itself that is redundant.

Its interventions come at a delicate moment in the politics of China’s ruling elite. The party is about to put on trial one of its own, Bo Xilai, a former member of the Politburo whose downfall last year afforded a glimpse into the viciousness of the elite’s factional struggles. China’s leaders have also been packing for their annual conclave at the seaside resort of Beidaihe. This year it is especially vital, since in the autumn Mr Xi’s year-old regime is expected to set out its stall at a meeting of the party’s central committee and signal China’s direction for the coming decade.

The stridency of the tirades in the press suggests not all is sweetness among the leaders. As they paddle on the beach at Beidaihe, they are unlikely to bicker about constitutional law. They will, however, be squabbling over personal power and policy. One possibility is that Mr Xi and his allies are preparing a radical set of economic reforms: freeing interest rates, overhauling local-government finances, and easing landownership and residence rules. Stressing the primacy of the party and attacking abhorred liberalism in its latest disguise—constitutionalism—may help Mr Xi to push through his economic agenda over the objections of hardliners and interests threatened by reforms.

Still, little suggests that Mr Xi objects to the political line of the anti-constitutionalists. Mao Zedong followed Marx in believing that the economic structure determines the political one—a view echoed by many Western analysts today who argue that China’s politics has to change to reflect its economic transformation. By contrast, Deng Xiaoping and his successors, down to Mr Xi, have argued that to ensure that economic development does not lead to instability or chaos, strong party rule is more imperative than ever. For the People’s Daily, the Soviet Union’s collapse offers a salutary lesson: Mikhail Gorbachev “was thoroughly defeated because he used Western constitutionalism as a blueprint”.

A throttle not a brake

In the end, however, the anti-constitutionalists are not wholly at odds with the Qing reformers, who saw a constitution as a way not to constrain state power but to enhance it. As Orville Schell and John Delury note in a new book on modern Chinese history (“Wealth and Power”): “Reformers have been interested in democratic governance not because it might enshrine sacred, inalienable liberties but because it might make their nation more dynamic and thus stronger.” In recent decades, a dynamic China has certainly grown stronger. This has enabled the party, like Cixi’s weak regime, to brush off the constitutionalists—until in the Qing’s case, at least, it was too late to stave off collapse.

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 (, 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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