Exploring Constitutional Reform in the Wake of the Bo Xilai Affair

In recent years, China’s commitment to “rule in accordance with law” has been called into question as Chinese Communist Party (CCP) leaders have intensified the politicization of legal institutions, de-emphasized judicial professionalism and formal adjudication, and suppressed rights defenders (“CCP Tightens Control over Courts,” China Brief, June 17, 2011).  The fall of Politburo member Bo Xilai and reappraisal of his anti-crime campaign have fueled debate over these trends.  While official media have tried to spin Bo’s fall as a demonstration that no official is above the law, the incident has intensified public discussion of the excesses of political elites, disregard for the law, and instability and lack of transparency in China’s political system. Some analysts argue that the Bo Xilai affair has put CCP conservatives such as Zhou Yongkang on the defensive and reinvigorated a reform faction led by Premier Wen Jiabao (Washington Post, April 26).  

While such political dynamics are difficult to interpret, recent events raise the possibility that China’s leaders could explore political-legal reforms to bolster CCP legitimacy and public confidence in their rule of law narrative. Veteran China watcher Cheng Li suggests the Bo affair could create an opening for constitutional reform (Financial Times, April 26). A recent series of state media commentaries calling for political-legal reform also indicate that reform dynamics could be in play (People’s Daily, April 23; Xinhua, April 23; China Youth Daily, April 23). The CCP has pursued legal reform in the post-Mao era in part to shore up its governing legitimacy and ease pressures for broader political reform [1]. In this context, it should be noted that both the commentaries and previous leadership statements emphasize reform as a tool to strengthen CCP leadership (”The Limits of Reform: Assaulting the Castle of the Status Quo,” China Brief, April 26). This article explores three reforms with constitutional dimensions that would be consistent with China’s party-state structure and that the Zhongnanhai might represent as steps toward enhancing supervision of state action.

Constitutional Supervision Committee

Under China’s Constitution, the National People’s Congress (NPC) is the supreme organ of state power. There is no separation of powers under this constitutional structure, which was modeled on that of the Soviet Union. The NPC and its Standing Committee (NPCSC), rather than the courts, are charged with supervising enforcement of the Constitution and annulling regulations that conflict with the Constitution. Even official Chinese sources acknowledge the NPCSC has failed to perform these functions in practice.

To address this dysfunction, legal scholars have pushed for the establishment of a specialized constitutional supervision committee under the NPC. While proposals vary, at minimum such a committee would be empowered to review the constitutionality and legality of some legislative acts [2]. Legal scholar Ji Weidong has proposed a constitutional committee of political and legal figures that would issue rulings on such issues subject to the condition that the NPC could reject them. [3]. Scholars involved in the drafting of the 2000 Legislation Law and the 2006 People’s Congress Standing Committee Supervision Law included provisions for a constitutional supervision committee in early drafts of these statutes, but in both cases the provisions were later removed.   

There is precedent for such a committee in constitutional system similar to China’s. As a component of Mikhail Gorbachev’s reforms, the Soviet Union established a Constitutional Supervision Committee under its supreme legislature, the Congress of People’s Deputies (CPD), in 1990 [4].  The CPD elected a Committee of more than twenty members from the fields of both politics and law.  The Committee was empowered to review the constitutionality and legality of a range of state acts of the USSR and its republics and in most cases could suspend their effect. If the Committee found that a CPD law or a union republic constitution violated the USSR Constitution, however, its ruling was advisory in nature and could be rejected with a two-thirds vote in the CPD. The Committee structure thus respected, at least nominally, the CPD’s constitutional supremacy [5].    

The life of the Committee was cut short by political events that led to the dissolution of the USSR in 1991. During its brief existence, however, the Committee exhibited several flashes of independence. In one 1990 case, for example, the Committee reviewed the constitutionality of provisions related to the Soviet internal passport and registration system, which resembled China’s hukou system. The Committee suspended some of these provisions after finding that they violated fundamental human rights. In another case, the Committee reviewed the constitutionality of a Gorbachev presidential edict that empowered the Soviet Council of Ministers, rather than the Russian Federation, to exercise jurisdiction over the growing number of mass demonstrations in Moscow. To Gorbachev’s displeasure, the Committee found the edict to be an unconstitutional exercise of executive authority.

Although the Soviet experiment provides a precedent for a constitutional supervision committee in a communist state with a supreme legislature, a risk-averse Chinese regime may have concerns about following this model. The CCP has expended enormous effort to study the collapse of the Soviet Union. Though the Soviet Committee did not play a significant role in these events, Chinese leaders may be reluctant to consider an institutional model that was associated Gorbachev’s failed reforms or that demonstrated even limited willingness to constrain central political leaders.  

One alternative would be to take modest steps to improve the transparency and effectiveness of existing NPCSC review procedures. Under current law, Chinese citizens have the right to propose that the NPCSC review the constitutionality and legality of some regulations.  Although the NPCSC has received over 900 citizen review proposals, it has never issued a formal decision in response. To address criticism related to this institutional silence, the NPCSC procedure could be reformed to require the issuance of formal, public responses on the handling of such proposals and expand the proposal right to include a broader range of state acts. Some provincial procedures for local people’s congress supervision over normative documents (official documents with repeat and binding legal effect) already contain such features [6]. Chinese citizens would likely view either the establishment of a constitutional supervision committee or modest improvements to NPCSC procedures as a symbolic step forward in China’s constitutional evolution.

Consultative Mechanisms

A second possibility involves the establishment of consultative mechanisms for the resolution of constitutional disputes. Such a mechanism would involve CCP-supervised processes of deliberation, consensus building, and mediation that balance both legal and non-legal considerations. Some Chinese scholars argue that an informal mediation mechanism for resolving constitutional disputes already exists (Zhongguo Xianfa Jiaoxue Wang, Apr. 24, 2004). The process through which the State Council decided to repeal regulations on custody and repatriation in 2003 and to adopt new regulations on urban property expropriations in 2011 provide examples of these consultative dynamics. As an alternative to a formal constitutional supervision committee, the CCP could consider steps to institutionalize consultative practices that are currently employed on an ad hoc or informal basis.

A consultative mechanism could take a number of forms. Proposals for a constitutional supervision committee could be adapted to provide for the establishment of a body with only deliberative and advisory powers, perhaps under the framework of the Chinese People’s Political Consultative Conference. Such a body could receive and deliberate on constitutional complaints, mediate intra-state conflicts and make recommendations for corresponding legal and policy reforms to party-state leaders.

China’s existing grand mediation system is another consultative mechanism that might be adapted to address sensitive constitutional disputes. Under the grand mediation framework, first introduced in 2002, CCP and state leaders jointly identify collective or sensitive disputes and deploy integrated CCP, state and social resources to resolve them at the local level. Within this framework, judges serve as legal advisors in a multi-party political conference that balances legal, political, and other factors and resolves disputes through mediation and persuasion. An adaptation of grand mediation framework at the national level could provide a mechanism for resolving sensitive and politicized rights claims through a consultative framework.

A consultative mechanism would have several features that might be desirable to the CCP. First, it would build on practices at the core of existing legislative, policymaking and dispute resolution processes and would reinforce efforts to build controlled channels for citizen participation and supervision. Second, a consultative mechanism might ease concerns about potential threats to CCP power and in turn represent an acceptable compromise for conservatives in a divided leadership. Finally, senior leaders could claim reform progress by arguing that they have taken steps to ensure consideration of constitutional complaints but do so through an indigenous, CCP-supervised mechanism grounded in China’s political traditions. While consultative mechanisms could facilitate citizen-state discourse on sensitive constitutional issues, however, the same features that could make them desirable to the CCP also highlight their limitations as mechanisms for constraining party-state power in practice.

Administrative Law Reforms

A third option would be to press forward with administrative law reforms at the national level. Scholars have argued that in the absence of enforceable constitutional law, administrative law has emerged as a partial substitute [7]. Chinese scholars have pushed for the adoption of a comprehensive Administrative Procedure Act (APA) that would establish detailed standards and procedures for the exercise of administrative power. These central efforts have been stalled for over a decade. A decision to press forward with administrative procedure reforms at the national level would address key governance issues and constitute a broad legal reform with constitutional significance.

Central leaders have local models to draw on should they decide to take this path. Facing obstacles at the national level, Chinese scholars turned to provincial-level administrative procedure reforms. Initial efforts focused on Hunan, where governor Zhou Qiang a played a key role in pushing through the first provincial-level administrative procedure provisions and several related reforms beginning in 2008. Zhou viewed these reforms as vehicles for imposing greater transparency and checks on administrative decisions that often involve corruption or generate social conflict (Southern Weekend, September 25, 2008). The Hunan provisions subsequently inspired local efforts in Shandong province, Wuhan, Shantou, and other locales. Zhou, a Hu Jintao ally and a lawyer by training, is rumored to be in play for a Politburo seat at the 18th Party Congress (“Hu Jintao’s Sixth Generation Protégés Play Safe to Ensure Promotion,” China Brief, April 26).  

The Hunan administrative procedure provisions and related measures establish important rules  designed to constrain state action [8]. The provisions more clearly define administrative powers and require the adoption and publication of standards for the exercise of discretionary authority. They enhance citizen supervision and participation by requiring consultation with experts, notice and comment procedures, and public hearings for major administrative decisions and other administrative acts. They also improve transparency and establish procedural protections for citizens subject to or impacted by administrative decisions, adjudication, or enforcement. Finally, the provisions take steps to control normative documents by restricting their scope and providing that they expire automatically after five years.  

A push to accelerate administrative procedure reforms at the national level may be the most likely of the three possibilities examined here.  Central leaders have drafts of a national APA and local experiences to draw on. Notably, one of the April 23 commentaries on deepening reform included contributions from research centers in Hunan and Shandong, the two provinces that have enacted administrative procedure provisions (People’s Daily, April 23).  National administrative procedure reforms would address key governance issues such as improving transparency; enhancing public participation and “democratic” supervision; and standardizing administrative practice. Wen Jiabao also emphasized these themes in a recent article that focused on controlling corruption (Qiushi, April 26). While arguably enhancing legal constraints on state action, however, such reforms would not directly implicate the sensitive issue of interpreting or enforcing citizen rights enshrined in the Constitution itself.

Conclusion

Although some may question whether significant reforms are feasible when competing CCP factions are engaged in a political transition, China’s last transition highlights just such a possibility.  In 2002-03, Hu Jintao and Wen Jiabao took the reins of the party-state apparatus in the midst of a political debacle that damaged CCP legitimacy (the SARS crisis) and a human rights case that drew attention to local abuses (the death of Sun Zhigang in official custody). The Hu-Wen team responded to these challenges by emphasizing transparency, encouraging reform discourse, and opening the door to modest constitutional-legal reforms. They also leveraged these responses to strengthen their position in an uncertain transition. (China Leadership Monitor, Summer and Fall 2003). Similarly, a rising leadership team under Xi Jinping might consider one or more of the reforms discussed here as a tool to restore confidence in China’s legal construction project and bolster the legitimacy of both the Party and their own leadership.

Of course, such reforms would likely impose only limited constraints on the party-state in practice. China has experienced many obstacles in implementing even modest administrative law reforms, and the CCP would undoubtedly maintain tight control over any constitutional supervision or consultation mechanism. The Hu-Wen team’s eventual shift away from the reformist rhetoric of 2002-03 and toward efforts to strengthen CCP control over legal institutions and contain the rights defense movement is also a reminder that reform dynamics in China can change rapidly. That said, even superficial or incomplete legal reforms have the potential to raise citizen expectations, create political space for reformers, and provide new platforms that can be used to exert pressure on the party-state. In this respect, they may be useful to reform-minded citizens working to shape China’s political environment in ways that would make legal institutions more meaningful over the long term.

Notes:

1.     Randall Peerenboom, China’s Long March Toward Rule of Law, Cambridge: Cambridge University Press, 2002, pp. 9-26.

2.     Zhu Guobin, “Constitutional Review in China: An Unaccomplished Project or a Mirage?” Suffolk University Law Review, Vol. 43, No. 1, 2009, pp. 650–53.

3.     Ji Weidong, “Hexianxing Shencha Zhidu de ‘Liangbu Zou’ Silu, [The Two-Step Road for a Constitutional Review System],” 2003 Renda Yanjiu, No. 7, pp. 10–11.

4.     For one account of the Committee, see Joseph Middleton, “The Soviet Experiment with Constitutional Control: The Predictable Failure of the USSR Constitutional Supervision Committee,” in Constitutional Reform and International Law in Central and Eastern Europe, Kluwer, 1998, pp. 133–48.

5.     Prior to 1990 constitutional amendments, the USSR Supreme Soviet was the highest organ of state power.

6.     See, e.g., Zhejiang Sheng Geji Renda Changweihui Guifanxing Wenjian Beian Shencha Guiding [Zhejiang Province Provisions on Filing and Review of Normative Documents with Local People’s Congress Standing Committees at Each Level], Issued Dec. 18, 2007.

7.     He Xin, “Administrative Law as a Mechanism for Political Control in Contemporary China,” in Building Constitutionalism in China, Palgrave, 2009, pp. 160–61; Stanley Lubman, “Citizen Rights, the Constitution, and the Courts,” China Real Time Report, September 26, 2011.

8.     Hunan Sheng Xingzheng Chengxu Guiding [Hunan Province Administrative Procedure Provisions], Issued Apr. 17, 2008; Hunan Sheng Guifan Xingzheng Cailiang Banfa [Hunan Province Measures on Standardizing Administrative Discretion], Issued April 17, 2010.