Constitutionalizing Wukan: The Value of the Constitution Outside the Courtroom

Starting last September, a protest in Wukan village made world headlines. After months of tension, thousands of villagers angry over the seizure of their land, inadequate compensation and the death of a villager in police custody expelled village officials and occupied the public square. Provincial party officials eventually diffused the collective dispute with a compromise settlement that authorities have taken some steps to implement (Wall Street Journal, February 3). Considerable debate has emerged regarding the significance of these events. Some Chinese commentators and officials have characterized the compromise as a turning point and a model for more conciliatory approaches to local governance and dispute resolution (South China Morning Post, January 5; People’s Net, December 22, 2011). Other commentators have expressed skepticism that the Wukan compromise will be honored or that it heralds a shift in social management policies (“The Grim Future of the Wukan Model for Managing Dissent,” China Brief, January 6).

Even if the skeptics are ultimately right about the immediate impacts of the incident, such critiques obscure Wukan’s potential to advance important grassroots constitutional awareness. Scholars recognize even unsuccessful dispute resolution outcomes may spark collective reflections that shape public understandings and reinforce emerging constitutional visions [1]. As prospects for formal legal processes to resolve constitutional disputes have dimmed, reform-minded Chinese citizens have turned to constitutional argument not primarily as a legal weapon, but as a tool to build public pressure for modest reforms and shape China’s political environment over the long term. Citizen reactions to Wukan provide an example of this dynamic and highlight the importance of property rights as a crucible of constitutional contention.

Citizens Use the PRC Constitution as a Political Tool

The PRC Constitution is sometimes characterized as an aspirational text rather than a legally enforceable charter. The National People’s Congress (NPC) and its Standing Committee (NPCSC) are charged with supervising the enforcement of the Constitution. Although these organs have implemented some constitutional provisions through concrete legislation, they have fulfilled their other duties to enforce the Constitution only in limited respects. Chinese courts do not exercise the power to review the constitutionality of legislation and only occasionally reference the Constitution in their judgments. Chinese sources suggest the courts are prohibited from citing the Constitution as the legal basis for judgments  (Center for People’s Congress and Foreign Legislature Study, May 26, 2011).

A series of events and leadership statements from 1999 to 2005 indicated the Party-State might be prepared to establish a more robust legal mechanism for adjudicating constitutional claims. Such an outcome never materialized (“NPCSC: The Vanguard of China’s Constitution?” China Brief, February 4, 2008). Party-State institutions instead took steps to eliminate the possibility of constitutional litigation in the courts (“The Death of Constitutional Litigation in China?” China Brief, April 2, 2009). Fearful of an avalanche of citizen claims, the NPCSC has avoided issuing formal public rulings on citizen proposals to review the constitutionality of lower-level legislation [2].  These developments, along with the sustained politicization of legal institutions and suppression of rights defense lawyers, have generated pessimism about prospects for constitutional law in China.

This pessimism is understandable, but it also obscures important grassroots constitutional dynamics. In recent decades, even U.S. legal scholars have explored the dual political-legal dimensions of constitutional law and reassessed the centrality of courts in interpreting and enforcing the U.S. Constitution [3]. These theories of “popular constitutionalism” highlight the long, arduous processes of popular expression, deliberation and mobilization necessary to embed new constitutional visions. East Asian transitions from authoritarianism reinforce these perspectives. As experiences in South Korea and Taiwan illustrate, constitutional courts are more likely to consolidate, rather than catalyze, political openings [4].

In China, legal institutions are weak and tightly controlled. There are tensions between abstract constitutional provisions enshrining party leadership and those providing for  “rule according to law” and citizen rights. These tensions are unsettled and the subject of ongoing contention [5]. At some level, all constitutional disputes in China involve fundamental and unresolved political questions. In such a context, disputes over the constitution’s meaning and application are likely to be resolved through political rather than legal processes.

Chinese legal scholars recognize the dual political-legal dimensions of constitutional law and their implications. They acknowledge the legal dimension is weak and emphasize the importance of the political element in contemporary China.  Leading constitutional law scholar Zhang Qianfan captures the duality in a recent article that highlights the failure of “official” pathways for Chinese constitutionalism, i.e. judicial application of the constitution, and the importance, promise and limitations of “populist” pathways (illustrated by citizen movements to challenge China’s “custody and repatriation” system in 2003 and to block the construction of a paraxylene plant in Xiamen in 2007) [6].  Some Chinese legal scholars characterize the country’s evolving constitutional law as a product of ongoing citizen-state negotiation and compromise [7].

As the development of legal mechanisms for resolving constitutional disputes has stalled, Chinese citizens have offered constitutional arguments in the public sphere as part of a long-term effort to shape political values and expectations. Arguments are raised not with a realistic hope of winning a formal legal victory, but instead to build public consciousness and consensus. Citizens reference the constitution and offer constitutional arguments in media commentary, on Chinese Central Television and in blogs, petitions and public protests. Media outlets and universities publish annual compilations of  “major” constitutional incidents for both scholarly and mass audiences.  In these compilations, experts analyze the constitutional dimensions of a wide range of events that have attracted public attention. Reform-minded citizens argue that waving the “big flag of the constitution” and offering their own interpretations of the constitution will over time shape public consensus and the operation of state power.

Such efforts to “constitutionalize” public incidents take different forms.  In some cases, citizens offer concrete constitutional arguments in support of pending legal or political claims. In others, they present a constitutional gloss on public events and disputes in which the participants themselves did not focus on explicit constitutional claims. The Wukan incident provides an example of the latter dynamic.

Wukan as a Platform for Constitutional Discourse

A process of collective reflection over the constitutional implications of the Wukan incident has already begun. Commentators have characterized the Wukan incident as a “rights defense” (weiquan) action, an expression of rights of assembly, demonstration, expression and supervision enshrined in the Constitution, and a crucial milestone for citizen rights consciousness in rural areas. In a forward for 2012, the Southern Weekend editorial board referred to Wukan as an example of citizens taking strong steps for land rights and rights of autonomous governance and expressed its “hope that the constitution will sound its solemn pledge like a ringing bell and justice and fairness will shine on all.” “We are building a citizen society full of vitality,” concluded the board (Southern Weekend, January 4, 2012).

In another example, scholar Wang Zhanyang focuses on Wukan as a foundation for constitutional democracy. His essay explores the need to reconcile village “sovereignty” and Party leadership and praises the “democratic struggle for rights that developed in Wukan and generated a reasonable solution” (China Digital Times, January 10). Wang’s discussion tracks that of Chinese constitutional law scholars who emphasize populist pathways for constitutional development. It also complements scholarly discussion that characterizes the tension between the leadership role of the Party and constitutional provisions on legal supremacy and citizen rights as an issue of “sovereignty” [8].

In December, sixty legal scholars from around China met at Renmin University and named Wukan one of ten “major constitutional law precedents” of 2011 (Renmin University, Constitutional and Administrative Law Research Center, December 26, 2011). The People’s Daily and other state-run media published this list, which also includes such events as the introduction of a property levy in Shanghai and Chongqing and an open government information lawsuit filed against the Ministry of Land and Resources (People’s Net, December 26, 2011; Legal Daily, December 25, 2011). In an indication of the sensitivity of these cases, the current media lists do not include detailed analysis of the constitutional dimensions of the incidents. In past years, such analysis has sometimes followed later (People’s Net, January 24, 2010). These compilations, however, do provide Chinese scholars with a platform for disseminating information about the Constitution and discussing its relevance to public events.

Some commentators have applied the lessons of Wukan to even more sensitive conflicts. In one commentary, a scholar expounded on Wukan and the need to step away from an adversarial mentality. The author then tied these concepts to instability related to religious issues: “although the Constitution makes clear that citizens of the PRC have the right to freedom of religious belief…in work practice, religion has consciously or unconsciously been regarded as an adversarial consciousness or behavior” (People’s Net, January 4). Although the author does not explicitly refer to Tibetan regions, the commentary may have been inspired by rising tensions in China’s ethnic Tibetan communities last year (Wall Street Journal, January 16).

Property Rights Are a Crucible for Constitutional Contention

Not surprisingly, Wukan and several other “major constitutional law precedents” for 2011 relate to property rights issues. Over the past decade, many citizens’ constitutional claims have focused on issues related to property rights. The adoption of constitutional amendments in 2004, the adoption of the Property Law in 2007 (which gave concrete legal effect to the 2004 constitutional amendments), and the adoption of new regulations on urban property seizures in January 2011 have been, in part, the product of successive waves of property seizures, instability to these seizures and constitutional and legal claims.

The process leading up to the adoption of a more restrictive regulation for urban property seizures illustrates these dynamics. In 2009, the self-immolation of a Chengdu woman protesting the demolition of her property generated widespread discussion in China.  Leveraging this public discourse, Chinese scholars filed a constitutional review proposal with the NPCSC challenging the constitutionality of China’s regulation on urban property seizures. The sophisticated proposal, which cited both the 2004 constitutional amendments and the Property Law, offered nuanced constitutional, legal and policy arguments challenging the existing framework and tying it to instability (People’s Net, December 10, 2009). Senior legislative officials invited the scholars to discuss their claims, and Chinese media ran interviews with them (People’s Net, December 29, 2009; Focal Point (CCTV), January 27, 2010).

These events provided momentum for the adoption of a new regulation governing the seizure of buildings on state-owned land. In early 2010, the State Council released a draft regulation for public comment and continued difficult negotiations with local governments over the new, more restrictive legal framework for urban property seizures. (Xinhua, January 28, 2010). A second draft of the regulation was released and discussed in late 2010, and authorities issued the “Regulation on the Expropriation of Buildings on State-Owned Land and Compensation” in early 2011. Days later, Shanghai and Chongqing announced plans to experiment with a new property levy (Financial Times, January 27, 2011). Early domestic reports on the property levy prompted public calls for greater transparency and public participation in local governance (Southern Weekend, June 10, 2010). As these events indicate, efforts to finalize the new regulation involved a complex public deliberation and balancing of interests,  and it generated new ripple effects. Although the new regulation addressed some important constitutional issues (such as providing criteria for when a seizure is in the “public interest”), it did not address collectively-owned rural lands.

Similarly, the Wukan incident is promoting discourse over reform of the constitutional-legal framework for collectively-owned rural lands. Citizens have raised constitutional proposals to the NPCSC on this issue in the past (Chinaelections.org, May 8, 2010). As noted above, Chinese commentators are discussing constitutional and legal issues related to the rural land system and village governance in analysis on Wukan. In so doing, they are contributing to collective reflection on the meaning and interpretation of provisions on collective ownership of rural land, guarantees of compensation for property seizures and village governance enshrined in Articles 10, 13, and 111 of the PRC Constitution. These discussions appear to be providing new momentum for reform of the legal framework for rural land requisition. At a December session of the NPCSC, delegates pushed for an acceleration of efforts to amend the Land Administration Law (Boxun, December 31, 2011). In January, Premier Wen Jiabao noted problems related to rural land seizures and stated the legislative concepts embodied in the January 2011 regulation should “in principle be applied to reform of the rural land requisition system” (Qiushi, January 16).

Conclusion

In the face of unsuccessful efforts to establish a formal legal process for resolving constitutional disputes, Chinese citizens have not abandoned constitutional arguments. Instead, they have continued to constitutionalize a broad range of public disputes and offer constitutional arguments in both legal and non-legal fora.  Many of these efforts are intended to generate public pressure for continued incremental reform and, in the long-term, to shape China’s political environment in a way that ultimately could make a constitutional adjudication mechanism meaningful in practice. Disputes over economic rights, which do not involve direct challenges to core pillars of Party-State power and touch on the lives of a large number of citizens, are one effective platform for advancing constitutional discourses. As one Beijing scholar commented with respect to Wukan, “When material rights are violated because of an irrational political system, people will raise political demands” (Gongshi Net, January 11).  Legal scholars are legitimizing and expanding such demands by placing them in a constitutional law framework. As observers reflect on Wukan’s impacts and on the development of constitutional law in China, these dynamics are worthy of attention.

Notes:

1. Michael W. Dowdle, “Beyond ‘Judicial Power’: Courts and Constitutionalism in Modern China,” in  Building Constitutionalism in China, New York: Palgrave MacMillan, 2009, pp. 204, 213–17.
2. Author Interview, 2007.  Article 90(2) of the PRC Legislation Law gives citizens the right to raise such review proposals for consideration by the NPCSC.
3. For example, see Bruce Ackerman, We The People: Transformations, Cambridge, MA: Harvard University Press,1998, and Larry Kramer, The People Themselves, Oxford: Oxford University Press, 2004
4. For the impotence of constitutional courts under authoritarian governments in Taiwan and South Korea and their transformation after the door to political reform opened, see Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases, Cambridge: Cambridge University Press: 2003, pp. 106–157, 206–246.
5. Randall Peerenboom, “The Social Foundations of China’s Living Constitution,” January 26, 2010, p. 22, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1542463.
6. Zhang Qianfan, “A Constitution without Constitutionalism? The Paths of Constitutional Development in China,” International Journal of Constitutional Law, Vol. 8, No. 4, October 2010, pp. 950-976.
7. Cai Dingjian, “The Development of Constitutionalism in the Transition of Chinese Society,” Columbia Journal of Asian Law, Vol. 19, No. 1 (Fall 2005), pp. 28–9; Zhai Xiaobo, Renmin de Xianfa [The People’s Constitution], Beijing: Law Press China, 2009, pp. 5–7, 48.
8. Zhai, Renmin de Xianfa, p. 2; Chen Duanhong, “Zhongguo Xianfa de Genben Yuanze Ji Qi Geshihua Xiuci “ [Fundamental Principles of China’s Constitution and its Rhetorical Pattern], March 20, 2008, available at https://www.chinaelections.org/NewsInfo.asp?NewsID=124568.