Wednesday, September 18, 2013

Will China Be True To Their Constitution?

By Tenzin Lekshay

Current Chinese Leaders
Last month, after I wrote an article on Yu Zhengsheng, I met Mr. Dawa Tsering, former colleague who is currently based in Taiwan. He is one amongst the small contingent of Tibetan bureaucrats in exile, who has prolific knowledge on China. While we discussed briefly about the current Chinese leadership, I asked his expert opinion on Yu's remark on Middle Way Policy. Though, our meeting was short, he made a very good observation by saying that the current Chinese leaders are presently emphasizing on the importance of constitution and the rule of law. If they stick to their words, then it may generate a possibility in resolving the Tibet problem. This gave me space to acknowledge that despite painfully traumatized by the Chinese intruding forces for more than 5 decades, Tibetans are keeping faith in hope and optimism. Mr. Thubten Samphel, former Information Secretary of the Central Tibetan Administration confirmed that the hope is the best friend of the Tibetans.1

Soon after acceding to the power, Xi Jinping vividly spoke on the importance of constitution when he attended the 30th Anniversary of the adoption of the Constitution. He said "We must firmly establish, throughout society, the authority of the Constitution and the law and allow the overwhelming masses to fully believe in the law,". He also ensures that "no organization or individual has the special rights to overstep the constitution and the law".2 Later during a seminar of the Political Bureau of the CPC Central Committee, Xi claimed "all citizens, social organizations and government agencies must exercise their rights or power, and fulfill their obligations in accordance with the Constitution and the laws."3 Xi Jinping was not alone drumming up the rule of law, Premier Li Keqiang too solemnly pledged to be true to the Constitution and loyal to the people.4 

Even though, importance of constitutionalism were aired during the initial days of the current Chinese leaders, their thick words silently vaporized into the dark clouds of political mayhem. Over the recent  months, the Chinese government abruptly shifted and reversed its position, which indicated a stringent abduction of the civil and political rights by restricting reforms. Such drastic shift was believed to be supported by powerful political backing as the party is covertly divided into reformist-liberal and the hardcore conservatives. Earlier this year, the Liberals published a bold article with the "New Year Greeting" which argues seeking attention on the roles of the constitution. But, the conservatives rejected constitutionalism as "not suitable for socialist countries" and implies that the system "belongs to capitalism and bourgeois dictatorship" and not to China's "people's democracy".5 They also argue that constitutionalism was supported by hostile foreign forces to undermine the party's rule, and acknowledges that the reform is incompatible with China's development.6 Document No. 9, which was secretly issued by the General Office of the CCP Central Committee in April attacks western democratic Ideals by identifying "seven threats" to their ideological sphere.7 But, Prof. Jerome Cohen said that China "is not repudiating a so-called Western legal system even though they say they can't adopt it all."8

Generally, Constitutionalism means the implementation of constitution. However in China, it is assumed to be the manifestation of a broad political reform, which includes rule of law. The Chinese government, particularly the party was disturbed to learn that the "Constitutional Government" was openly  and actively discussed in Sina weibo, China's prominent social networking platform. The Chinese censors became active in deleting those comments indicating that the subject is not for the public to discuss. 

Prof. Willy Lam noted that China's reform will concentrate more on Economics rather than politics, as China has first "Ph.D. prime minister". But even for implementing the economic reforms, China will face challenges as China's "Seven unmentionable" includes universal norms, civil liberties, press freedom and the independence of the judiciary, which are deemed integral components of relatively successful market economies in western and Asian countries."9 He referred China's legal reform as an empty rituals, where politics dominate the due process of the law.10 Crackdown, harassment and detention of rights activists and the advocates of rule of law remain harsh as ever. It was possibly due to the social stability factors, which the CCP fears that right activists are challenging the authority of the party. Though disgraced Chongqing leader, Bo Xilai's trial was propagated as "victory for the rule of law in China", Donald Clarke wrote that the Bo Xilai trial looks to be just the "same old, same old".11

Despite uneasiness over the reforms, there is a huge challenge in front of the Chinese leaders. Many diverse slogans on Constitutionalism like 'Standing on a knife's edge in China' and 'Sleeping Beauty' and 'putting power in a cage and giving key to the people' are breaking the nerves of the party leaders. The way forward for Xi Jinping is to proceed diligently along the rule of law to safeguard their 'Stability' and 'unity' tag. Otherwise, if Xi could not translate his words into actions by using the Chinese characteristics, China will move towards anarchy where they exist  a rule of fear not the rule of law. It is therefore, require a political will to implement  reforms in a more pragmatic approach, which could make "China Dream, Constitution Dream".

Regarding Tibet, Yu Zhengsheng's remark on Middle Way, which he claimed not construing to the Chinese constitutional framework needs a thorough explanation from the Chinese leaders on how Middle Way Policy of the Central Tibetan Administration is not aligning to the guidelines of the Chinese constitution. His Holiness the Dalai Lama has recently stated that Chinese policy in Tibet is now more realistic. The ball is in the hands of Chinese leaders to resolve the long pending issues of Tibet. 


  2. Where does Xi stand on the Constitution? - Columnist - New Straits Times

Supplement Articles on China's Constitutionalism

Can the Chinese Communist Party Still Reform?
By John Marshall, The Diplomat, 18 September 2013

Unfortunately, there are compelling reasons to believe that the present-day Communist Party, and its associated governing apparatus, no longer retains the ability of its predecessors to deliver bold system-wide reform. Rather, it appears its own preoccupations and the major imbalances and vested interests that have emerged in China's politics, economy and society over recent years have critically weakened the Party's reforming prowess.
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Legal Reform in China: An Empty Ritual
By Willy Lam, The Jamestown Foundation, 12 September 2013

A closer examination of Xi’s statements, however, shows that he is hardly an advocate of decoupling law from politics. While taking about the Constitution, Xi stressed that “safeguarding the authority of the Constitution means safeguarding the authority of the joint will of the party and the people.”

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Mixed messages on constitutionalism
By Frank Ching, The China Post, 11 September 2013

It seems that, every 10 years, a new party leader gives a speech hailing the constitution as the guarantor of the people's rights. But a speech every 10 years is no guarantee that the constitution is actually going to be implemented.

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Is the Rule of Law Coming to China?
By Chun Peng, The Diplomat, September 10, 2013

The solemn pledge by Premier Li "We will be true to the Constitution" and the increase in top leaders having law background and legal training. Chun Peng concluded to justify that "the legal reform in today’s China cannot be isolated from – and in fact requires – political reform in a broader and deeper sense. Bearing in mind the possibility of imperfect realization and the need for institutional change, we have reasons to expect legally educated Chinese leaders and their non-lawyer colleagues to lead the country forward on these three fronts, not merely by virtue of their legal training but also to fulfill their promises."

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China's Constitutional Crisis
By Joanna Chiu, The Atlantic, 03 September 2013

“Constitutionalism, whether we’re talking about a political term or an institutional arrangement, stands right now on a knife’s edge in China,” Qian wrote. “Will it remain? Will it be thrown out? Will it live? Will it die? At the end of August, constitutionalism seemed to be in imminent danger. But as of yet, it has not become a deep-blue term. It is impossible to say whether Xi Jinping has even decided whether he means to ‘get rid of constitutionalism’ or to ‘implement constitutionalism’.”

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China has the rule of fear, not the rule of law
By David Aaronovitch, The Times, 29 August 2013

For all its gestures towards openness, the case against Bo Xilai was nothing more than a Soviet-style show trial.

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Document No.9: The Party Attacks Western Democratic Ideals
By Stanley Lubman, The Wall Street Journal, 27 August 2013

As articulated in Document No. 9, a memo by senior leaders to Party members, the threat of Western democratic ideals to Communist ideology and to the principle of Party leadership is being taken more seriously than at any time in the recent past. The scripted trial and the new document together suggest that we are unlikely to see any meaningful progress in the reform of legal institutions in the near future.

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China’s Rule-of-Law Trial
CFR, 27 August 2013

After the trail of Bo Xilai, Bernard Gwertzman, Consulting Editor, Council on Foreign Relations interviewed Jerome A. Cohen on China's rule of law. He said "They're not repudiating a so-called Western legal system even though they say they can't adopt it all," He also stressed that "The fact is they can't escape its influence and this trial shows it." He measured President Xi Jinping as a very mixed up and a very confused leadership.

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Could a Chinese constitution limit the CCP’s powers?
By Brendan Forde, East Asia Forum, 22 August 2013

The issue of constitutional implementation will not disappear — more and more citizens are aware of their enumerated rights and seek to use them. Protestors increasingly invoke these rights to legitimate and protect their actions. At stake is the rule of law itself and the faith of citizens in the Chinese political system. This is an important debate at an important time in China’s political development.

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The Bo Xilai Trial and China's 'Rule of Law': Same Old, Same Old
By Donald Clarke, The Atlantic, 21 August 2013

Author confidently wrote that  "Far from being a victory for the rule of law, then, the Bo Xilai trial looks to be just the same old, same old. Nobody believes that Bo is the only corrupt politician of his stature in China; the fact that others are not being prosecuted suggests that what is operating here is not a law-like principle of cause and effect, of crime and punishment."

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Why Bo Xilai's Trial Is a Victory for the Rule of Law in China
By Rebecca Liao, The Atlantic, 07 August 2013

Author confessed that "the rule of law is out of place in "Chinese Exceptionalism," and yet that is precisely why it is attractive. Law, though not without its own ideological detractors, largely retains its sheen of uprightness from Western countries."

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The rule of law: Bizarrely consistent
The Economist, 27 July 2013

This piece shows that though China show signs of progress in the nation's criminal code as the death sentence has significantly reduced from 12,000 in 2002 to 3, 000 in 2012. But when it comes to political agitators, China’s legal system is as harsh as ever. The past few days have seen a spate of incidents involving the harassment and detention of rights activists and advocates of the rule of law.

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A tussle in China over the Communist Party bowing to the Constitution
 By Peter Ford, The Christian Science Monitor, 24 May 2013

“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.

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Panel Discussion on Rule of Law in China: Prospects and Challenges
The Brookings Institution, 28 November 2012

All Proceedings:

A consensus for political reform
By David Bandurski, China Media Project, 02 January 2013

Yanhuang Chunqiu, a political journal associated with more liberal, pro-reform elements within the Chinese Communist Party, has published a bold and important “New Year Greeting” in its latest edition. The article, called “The Constitution is a Consensus for Political Reform,” argues that China’s Constitution already lays out the priorities to be addressed in carrying out meaningful political reform.

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