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  • Oct 29, 2014
  • Updated: 10:58am
Column
PUBLISHED : Thursday, 06 June, 2013, 12:00am
UPDATED : Thursday, 06 June, 2013, 4:05am

China's constitution appears headed for the growing list of taboo topics

Despite Xi Jinping's fine words about China's Dream, a series of developments since then have reminded us not to get too excited

BIO

Ng Tze-wei has reported on mainland Chinese legal affairs for the Post since 2007. From labour contract law to criminal procedure law, she has followed closely the twists and turns in the passing of many key legislations and debates over the country's legal reform. She can be reached at ngtwscmp@gmail.com.
 

In his recently published memoir, exiled former senior official Chen Yizi, a key government economic adviser in 1989, said reformists issued an appeal on May 19 of that year calling for the convening of a special meeting of the National People's Congress (NPC) to resolve differences among leaders on how to handle the student protests - rather than resorting to martial law - because it was a method provided for by the constitution.

While it is unclear whether such a meeting could have prevented the June 4 crackdown, 24 years later a keen - but still limited - discussion of the significance of the constitution is taking place in China, largely thanks to a speech by Communist Party general secretary Xi Jinping in December on the need to "respect and effectively implement the constitution".

Delivered on the 30th anniversary of China's current constitution, it was one of Xi's first major speeches as party chief and sparked optimism and heated public discussion about constitutional reform.

However, a series of developments since then have reminded us not to get too excited.

From the controversial censorship of the Southern Weekly's New Year editorial on "a constitutional dream" to the leaking of party instructions last month that banned the teaching of seven subjects in universities, including citizens' rights and judicial independence, it seems that discussion about the constitution and constitutionalism risks becoming the latest entry in the mainland's long list of sensitive topics.

China's current constitution - based on earlier versions from 1949 and 1954 - was passed in 1982 and has seen four amendments. It guarantees universal human rights such as speech, publication, association and protest. A clause that "the state shall respect and protect human rights" was added in 2004.

However, three decades on, it is clear that the document is more symbolic than real.

The recent round of discussion on the meaning of the constitution, or constitutionalism, began in 2011 during the 100th anniversary of the 1911 revolution that ended imperial rule and founded the modern republic.

While commentators across the ideological spectrum agree on the importance of the constitution, they argue about the significance of constitutionalism.

Reformers say it means deepening political reform, which should lead to separation of powers and a more democratic system. Meanwhile a very different view is gaining ground, one that suggests that constitutionalism is a Western "political standpoint" that is incongruent with China's "people's democracy".

If we look at world history, the spirit of constitutional rule is fundamentally about two things: restraint of government's power, and protection of citizens' rights.

Late Qing dynasty scholar Liang Chi-chao made this point in a famous essay in 1901 comparing constitutional rule and monarchy, and the former's advantage of relying on people's power to check officials' power.

Whatever type of constitutional rule leaders have in mind, in the face of rampant corruption and growing social unrest, they must address the goals of strengthening government accountability and the rule of law.

More than 70 prominent academics, including legal scholars Zhang Qianfan and He Weifang , signed a petition in late December, following Xi's speech, calling for a consensus on deepening reform.

They made concrete suggestions on how to push ahead with political reform to give meaning to the constitution. In particular, they suggested setting up a Constitutional Review Committee within the NPC as a first step to give the constitution real power.

While many countries have constitutional courts or allow their higher courts to interpret the constitution, citizens cannot bring a lawsuit in mainland courts to enforce their individual rights under the constitution.

The power to strike down laws or government actions that violate the constitution lies with the NPC - but it is a power that has never been used.

Xi has talked about a "China dream" since becoming party chief in November, but the meaning of that dream remains elusive. Is it an expression of nationalism or was he thinking of a new China built on law and respect for rules?

If so, allowing the public to discuss what constitutional rule means would provide the foundation for building that dream.

Ng Tze-wei is a former South China Morning Post reporter

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This article is now closed to comments

lucifer
When China first opened its doors, instead of trying to achieve what developed coutries did though progress and hard work, they hand picked key points they thought symbolized a developed country and then strove to make those points a relaity. One element was lots of laws and a consitution. They did not consider legal development and thge rule of law, just that laws were needed, but they could also be used as tools for persecution. The consitution was part of this fable and it has never held any value or respect since it was created. It is merely a piece of paper, like the pages of a fiction book.
newgalileo
The Constitution has always been an "illegal document" in China. No discussions, no calls for respecting it and not allowed to be used in a court of law. Simple. Nothing new.
 
 
 
 
 

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