China’s New National Constitution Day: Is It Worth Celebrating?

In one of its few precise actions, the recent fourth plenary session of the current Central Committee of the Chinese Communist Party declared December 4 to be “National Constitution Day” (China News, November 1). The Standing Committee of China’s National People’s Congress, ever responsive to the Party’s lead, promptly enacted this decision into law, as it did the decision’s corollary requiring all appointed government officials to swear to uphold the Constitution. This was the slender immediate harvest of the Fourth Plenum’s unprecedented focus on “governing the country according to law” and especially “according to the Constitution.”

Will December 4 now become a milestone in Chinese history? May 4 (1919) will forever be remembered as the date that launched modern China’s first mass movement in its tortuous struggle to achieve democracy and the rule of law. June 4 (1989), on the other hand, will go down in infamy as the date of Deng Xiaoping’s heartless slaughter, near Beijing’s Tiananmen Square, of hundreds of youthful Chinese heirs to the aspirations of the May 4 generation.

How should the Chinese people and foreign observers interpret December 4? Should it be dismissed, as many oppressed Chinese human rights defenders claim, as solely a propaganda ploy, an occasion for hollow slogans issued to enhance the Party’s mobilization of the Constitution as an instrument for consolidating its dictatorial power over an increasingly restless and complex society? Or should it be seen as a prominent symbol of significant, if limited, progress in the growth of “constitutionalism,” the process of curbing arbitrary political power by subjecting rulers as well as the ruled to government under law?

For years, some law-reforming Chinese scholars urged China’s leaders to establish National Constitution Day as a symbol of a hoped-for comprehensive effort to raise popular rights consciousness and thereby provide greater public support for transforming the Constitution from an ineffectual listing of attractive goals to a vibrant and enforceable guarantor of human rights. Indeed, this is actually the Party’s third attempt to exploit December 4. When the current Constitution was first promulgated in 1982, the Party labeled this date “Implement Constitution Day.” In 2001, during another law reform era, the date was rebranded “Legal System Propaganda Day” (People’s Daily, December 5, 2001). Neither attempt made a substantial impact on the country.

Is National Constitution Day likely to be more effective? Or is it merely a sop to assuage constitutional reformers’ disappointment at the Fourth Plenum’s failure to announce any substantial institutional improvements? After all, the Third Plenum, just a year ago, and some of the earlier statements of the nation’s new leader, Xi Jinping, had encouraged the belief that the Party might finally, sixty-five years after the establishment of the People’s Republic of China (PRC), introduce an enforceable system of constitutional law to which the Party itself would be subject.

Before the ink had even dried on the Fourth Plenum’s documents, the Party’s increasingly harsh suppression of free speech almost undermined its plans for a new Constitution Day. November 4 almost eclipsed December 4 when an enterprising Chinese journalist reported that, on the former date, Shen Yongping, an innovative Chinese producer of documentary films, would be prosecuted for an alleged “illegal business operation.” The charge was based on his having shown his impressive video history of successive Chinese governments’ efforts to achieve constitutionalism since the end of the Manchu dynasty over a century ago! Apparently to reduce the ridicule of the Party that this news had begun to generate, the authorities announced that the trial of the hapless cinematographer, already jailed for several months, would be postponed, without setting a new trial date (Civil Rights & Livelihood Watch, October 24). The prosecutors lamely claimed that they needed more time to revise the indictment!

Is the Fourth Plenum likely to stimulate genuine “constitutionalism” instead of continuing a “socialist constitution with Chinese characteristics”? The Chinese term for “constitutionalism” (xianzheng) does not once appear in the Fourth Plenum’s lengthy, verbose Decision, while “constitution” (xianfa) pops up 38 times! Today’s Party leaders, following Mao Zedong, Deng Xiaoping and their Soviet mentors, associate constitutionalism with the Western concept of separation of powers, which they fiercely reject. For many months before the Third Plenum, the Party Central Committee’s notorious “Document No. 9” even prohibited public discussion of “constitutionalism and democracy,” which was the very first of the “seven unmentionables” it condemned as a sinister Western plot to “change the flag” and inflict “the Western model” on China’s political system (translated by ChinaFile, November 8, 2013).

Nevertheless, many inside and outside the PRC had clung to the hope that the Party, apart from again requiring a public celebration of, as well as an oath of allegiance to, the Constitution, would endorse some government mechanism for effectively protecting the badly-abused constitutional rights of the people.

The most obvious option for accomplishing this would be to strengthen China’s only authorized channel for handling constitutional claims—the Standing Committee of the National People’s Congress (NPCSC). Although the NPCSC has in recent years received hundreds of citizens’ complaints alleging constitutional violations and many other citizens’ proposals for constitutional interpretations, it has, at least formally, played the role of the reluctant dragon. It has yet to issue a ruling on any of these requests, preferring instead either to ignore them or to handle them via non-transparent, informal or indirect means. [1]

NPCSC officials maintain that many constitutional problems have been resolved through behind-the-scenes “internal working mechanisms” that feature consultation with offending agencies and informal pressure upon them to accept “voluntary” compliance with the law. As Chinese scholars have pointed out, this enables such agencies to “save face,” a key consideration when one PRC institution carries out its constitutional obligation to check the power of another. It also relieves the NPCSC of the burden and political risk of publicly articulating the rationale for its conclusions.

In the best-known attempt to elicit a formal response from the NPCSC, in 2003, during a very brief period of Party openness to constitutional reform, three scholars challenged the constitutionality of a national regulation that had been invoked by the police to justify detention of college graduate Sun Zhigang, who had died in their custody (Stéphanie Balme and Michael W. Dowdle ed., Building Constitutionalism in China, p. 226). The nature of this case, its timing and the nationwide publicity that the media had been allowed to give it, made it seem a golden opportunity to finally spur the NPCSC to formal action. After intense non-public intra-governmental deliberations, however, the Party decided to avoid the need for what would have become a legal landmark by having the author of the challenged regulation—China’s highest administrative organ, the State Council—repeal it. At the time, the scholars who brought the challenge were widely celebrated. As they continued their legal activism, however, they met official oppression. One, Xu Zhiyong, is now serving a long prison term, and another, Teng Biao, has had to choose exile to escape arrest.

Disappointingly, the Fourth Plenum offered almost no new prescriptions for strengthening the capacity or the will of the NPCSC to shoulder its responsibilities for interpreting and applying the Constitution. The Plenum repeatedly emphasized the importance of supervising the conduct of government agencies and correcting their misconduct. Yet, apart from generally urging improvements in the existing system for reporting to the NPCSC national and local government regulations for possible review of their constitutionality, it offered little guidance.

Many complex questions remain to be answered, particularly which of the many types of government-issued documents qualify as “normative documents” and therefore must be submitted for review. The Plenum’s mere admonition that “all normative documents” are subject to review does not help to delineate their scope. Even more sensitive is the question whether rule-making documents issued by the Party alone or in conjunction with government agencies should be subject to NPCSC review. The Party, it should be noted, in 2012 had already decided to institute a separate, but publicly inscrutable, Party review process for its own rule-making documents, which affect the lives of its 87 million members. This was endorsed by the Fourth Plenum’s Decision, but, again, with no indication of what this process involves. A secretive Party review process may, of course, seriously undermine whatever review process the NPCSC is seeking to develop, and today the entire complex area of Party-state legal relations is messier than ever.

The references to improving procedures for the filing and review of “normative documents” reveal the Party’s preeminent concern for the Constitution’s articulation of government structure and the allocation of competence among various institutions. The Party appears less concerned with citizen-government relations than with intra-government ones—particularly the relationships between central and local governments.

Many reformers, including some influential legal experts within the Party bureaucracy, had hoped that the official process for coping with both types of matters would be bolstered by the Fourth Plenum’s establishment of a constitutional commission under the NPCSC, but there was no mention of this possibility. It may yet happen, however. The Soviet Union, which spawned China’s constitutional system, finally established a constitutional commission within the USSR legislature only at the very end of the Gorbachev era, just before the USSR’s collapse.

Actually, the Basic Law Committee established by the NPC’s enactment of the Basic Law for Hong Kong in 1990 presented the opportunity for China to experiment with what could have, in effect, become a constitutional commission to interpret what has often been called Hong Kong’s “mini-constitution.” The NPCSC could have decided to accept the recommendations offered by that committee of political-legal experts, half from Hong Kong and half from the Mainland, as binding interpretations of the Basic Law. That arrangement would have been somewhat analogous to the British colonial system’s resort to the Judicial Committee of the Privy Council in the United Kingdom’s House of Lords for formal and final adjudication of constitutional and legal disputes relating to Hong Kong. Had the NPCSC been permitted to seize that opportunity, it would have established an impressive precedent for developing a constitutional commission for the entire nation.

By now, readers unfamiliar with China might well be asking: What about a role for courts in enforcing China’s Constitution? The central government of the Republic of China, prior to moving to Taiwan in 1949 after losing to the Communists in the civil war, did establish a Council of Grand Justices that was supposed to function as an independent constitutional court. In recent decades, that originally innocuous court has played an increasingly important role in Taiwan’s transition from Chiang Kaishek’s version of Leninist dictatorship to today’s vibrant political democracy.

Yet, despite proposals by many Chinese legal experts, the PRC has never come close to embracing the idea of a constitutional court. That would be contrary to the fundamental premise of the PRC governmental system, which places the NPC at the apex of official power, with the executive branch, the judiciary and the procuracy (prosecution) all reporting to it from their subsidiary positions. In the view of Party leaders, establishment of a constitutional court would place the judiciary on a par with the NPC and its Standing Committee contrary to Communist political-legal theory. This is one of the principal reasons why Chinese leaders and the mass media they control religiously insist that “governing the country according to the Constitution” is absolutely different from “Western constitutionalism and democracy.”

China’s regular courts, however, although weak in power and prestige and not explicitly authorized to engage in constitutional adjudication, have occasionally sought to do so. Indeed, in the heady law-reform atmosphere of the earliest years of this century, the Supreme People’s Court (SPC) tried to endow the ordinary courts with the power of judicial review of the legality of government actions. One SPC vice president, who was behind what Party leaders immediately deemed an illicit power-grab, was even unwise enough to proclaim that the innovative SPC ruling in what became known as the Qi Yuling case was the equivalent of Chief Justice John Marshall’s Marbury v. Madison opinion establishing judicial review in America (see China Brief, April 2, 2009).

The Party quietly put an end to this extraordinary chapter. Not long after, the activist SPC vice president, Huang Songyou, was sacked, convicted of corruption and sentenced to life imprisonment. His superior, the then-presiding SPC president, Xiao Yang—an impressive and politically savvy reformer—was himself rumored to be in danger of retaliation. Under Xiao Yang’s successor, a Party apparatchik, the SPC publicly annulled the Qi Yuling ruling, which had briefly been thought a landmark precedent. It is noteworthy that Xiao, in an apparent retreat from his earlier support for judicial review, recently endorsed the more conventional idea of a constitutional commission within the NPCSC.

Yet China’s increasingly informed and litigious citizens continue to press its more than 3,000 courts to vindicate claims based, at least in part, on constitutional values and provisions. Occasionally, but perhaps not as often as previously, judges still seek ways to provide satisfaction by finding statutory or other bases on which to ground sympathetic decisions.

For the foreseeable future, non-transparent, informal, consultative techniques developed by the NPCSC may suffice for settling intra-governmental constitutional disputes. They are unlikely to prove satisfactory, however, for disposing of the growing number of citizen demands for constitutional protection against a broad range of arbitrary official actions. These demands are undoubtedly being fostered by the current campaign for “governing according to the Constitution” as well as by improved economic, social, educational and communications conditions.

We can therefore anticipate greater pressures for the NPCSC to establish a functioning, credible, open process for handling constitutional disputes between citizens and the state, and perhaps even between citizens and the Party as the Party’s domination of the government becomes gradually more transparent. The assistance of some type of constitutional commission will undoubtedly look increasingly attractive to the NPCSC if it wishes to quell popular frustration and cynicism over the lack of an effective forum for dealing with constitutional disputes.

Furthermore, as those constitutional pressures grow, they may also cause Party leaders to give more careful consideration to the possibilities for the courts to assist the NPCSC, not rival it. For example, when constitutional claims arise in a case, the court, instead of formally refusing to deal with the issues as now required, could be authorized, with the approval of the provincial-level high court, to seek their determination by the NPCSC, postponing its final judgment until the NPCSC has responded. A similar system has proved feasible in Taiwan, where, in accordance with a creative interpretation of the Constitutional Court, a judge troubled by a constitutional problem can suspend court proceedings while applying for the guidance of the Constitutional Court; to avoid being inundated with such applications, the Constitutional Court exercises discretion whether or not to grant review.

The struggle for constitutional government is far from over in China. To be sure, the Fourth Plenum came up short on immediate institutional reforms. Yet it has stimulated greater interest and ferment among the country’s increasingly sophisticated citizens. Although liberal constitutional reformers are currently outnumbered and their freedom to debate the future is sharply restricted by the “people’s democratic dictatorship,” even the current repressive administration cannot indefinitely afford to ignore a rising demand for government under law. So, let us hope that the PRC’s new National Constitution Day will prove more successful than its predecessors in spurring popular support for genuine constitutionalism!

Notes

1. Many fine essays have been published in English and Chinese on the subject of constitutionalism in China. For ambitious newcomers to the field, I suggest starting with Keith Hand, “Resolving Constitutional Disputes in Contemporary China,” 7 University of Pennsylvania Law Review 51 (2011).