All Chinese, even party officials, must abide by the constitution

Hu Shuli welcomes indications that China's new leaders will act to strengthen its implementation, breathing new life into the rule of law

PUBLISHED : Thursday, 13 December, 2012, 12:00am
UPDATED : Thursday, 13 December, 2012, 4:30am

China's new leaders are giving every impression that they intend to govern the country in accordance with its constitution. At an event last week to mark the 30th anniversary of the 1982 constitution, the new Communist Party general secretary Xi Jinping said that without implementation, the constitution would be just a piece of paper - lifeless and without authority. His remarks hit home.

Effective institutions and a system of checks and balances hold the key. They ensure that - as the work report for the 18th party congress put it - no group or individual is above the law or the provisions set out in the constitution, and none may subvert them through words or actions.

China's constitutional development over the past 100 years vividly illustrates its tortuous path to modernity. The republic's first attempt at a constitution, the 1913 "Temple of Heaven" document, included the progressive concepts of liberty, freedom and respect for civil rights. But the chaos of the time made sure it was never implemented. In the three decades after 1954, no fewer than four constitutions were drawn up. The most left-leaning among them was the 1975 document, a product of the Cultural Revolution.

The 1982 constitution was written at a time when the country was still reeling from the devastation of the 10-year upheaval. The rule of law was weak, and there was desperate hope that a constitution could provide the foundation for political and social stability. Since then, the constitution has gone through four revisions, with a total of 31 amendments added to it. In step with China's economic development over the past 30 years, values such as the protection of private property and human rights have been included. The result is a good constitution with plenty of flexibility for change.

But although the constitution is seen as the foundation of our laws, it is rarely mentioned in daily life and seldom cited in judicial rulings. This is not the case in developed countries. This suggests that the Chinese constitution has yet to be fully applied.

In his speech last week, Xi noted that the constitution was not being implemented in several key areas. This was especially prominent in conflicts where people's interests were being encroached. Misdeeds by government officials were common, involving abuse of power, dereliction of duty and the violation of law for personal gain. All these can seriously damage the rule of law and the constitution's authority.

The shocking details of the Bo Xilai case bring this point home. Under his rule, Chongqing became a place where officials acted with impunity, and police officers were free to threaten, torture and manipulate court proceedings to their advantage, with no regard to justice. Many people were wrongfully jailed, and basic human rights and the rule of law were simply ignored. In particular, the high-profile campaign against syndicated crime was a cover for gross misconduct and many tragic stories of injustice. Yet, some local governments still see Chongqing as a role model and are trying to replicate its methods.

Legal experts say the key lies in the party's relationship to the rule of law. Though state leaders have agreed since the 1980s that party members must submit to the authority of the constitution, many officials continue to act as if they were above it. In such an environment, the constitution is relegated to being a set of rules people must follow, but can't perform its role as a safeguard for people's rights; party cadres may enjoy "special privileges" but their basic human rights are not protected. We must disabuse officials of the notion that they are above the law, and the belief that their position can be secured through an abuse of power.

Being aware of the problems is only a start. The solution lies in improving the institutions that can monitor the constitution's implementation, and investigate any abuses. For years, scholars have called on the Standing Committee of the National People's Congress to set up a supervisory body, yet progress has been desultory. It's time for China to revise the constitution and the relevant regulations at the people's congresses at all levels to strengthen oversight of the constitution's implementation.

Scholars have proposed three ways to conduct supervision. The first is to set up an independent constitutional court. The second is to set up a constitutional council under the auspices of the NPC, equal in standing to the NPC Standing Committee. The third is to set up a constitutional council within the NPC Standing Committee. These suggestions should be studied.

The constitution gains its authority in practice. Thus, it must guide judicial decisions. Only then can we meet the objectives of the 1982 constitution: "No organisation or individual can act beyond the parameters of the constitution and the law" and "all legal or constitutional violations must be investigated and dealt with".

The drafting of the Magna Carta in England gave birth to the constitutional law that's now the foundation in many societies. History shows that its essence is the restriction of power. Xi recently spoke of the "Chinese dream" of national revival: a Chinese people once again taking their rightful place in the world. Surely, the next step is to ensure the country is ruled by its constitution. That is the way to improve people's lives.