MCLC: constitutionalism

[Denton, Kirk]

MCLC LIST
From: kirk (denton.2 at osu.edu)
Subject: constitutionalism
***********************************************************

Source: NYT (2/3/13):
http://www.nytimes.com/2013/02/04/world/asia/reformers-aim-to-get-china-to-
live-up-to-own-constitution.html

Reformers Aim to Get China to Live Up to Own Constitution
By EDWARD WONG

BEIJING — After the chaos of the Cultural Revolution, the surviving
Communist Party leaders pursued a project that might sound familiar to
those in the West: Write a constitution that enshrines individual rights
and ensures rulers are subject to law, so that Chinawould never again
suffer from the whims of a tyrant.

The resulting document
<http://english.people.com.cn/constitution/constitution.html> guaranteed
full powers for a representative legislature, the right to ownership of
private property, and freedoms of speech, press and assembly. But the
idealism of the founding fathers was short-lived. Though the Constitution
was ratified in 1982 by the National People’s Congress, it has languished
ever since.

Now, in a drive to persuade the Communist Party’s new leaders to
liberalize the authoritarian political system, prominent Chinese
intellectuals and publications are urging the party simply to enforce the
principles of their own Constitution.

The strategy reflects an emerging consensus among advocates for political
reform that taking a moderate stand in support of the Constitution is the
best way to persuade Xi Jinping, the party’s new general secretary, and
other leaders, to open up China’s party-controlled system. Some of Mr.
Xi’s recent speeches, including one in which he emphasized the need to
enforce the Constitution, have ignited hope among those pushing for change.

A wide range of notable voices, among them ones in the party, have joined
the effort. Several influential journals and newspapers have published
editorials <http://english.caixin.com/2012-12-12/100471777.html> in the
last two months calling for Chinese leaders to govern in accordance with
the Constitution. Most notable among those is Study Times, a publication
of the Central Party School, where Mr. Xi served as president until this
year. That weekly newspaper ran a signed editorial on Jan. 21 that
recommends that the party establish a committee under the national
legislature that would ensure that no laws are passed that violate the
Constitution.

After the end of the party’s leadership transition last November, liberal
intellectuals held a meeting at a hotel in Beijing to strategize on how to
push for reform; constitutionalism was a major topic of discussion. At the
end of the year, 72 intellectuals signed a petition that was drafted by a
Peking University law professor who had helped organize the hotel meeting.
In early January, a censored editorial on constitutionalism at the liberal
newspaper Southern Weekend set off a nationwide outcry in support of press
freedoms.

Several people involved in the advocacy say their efforts are not closely
coordinated, but that rallying around the Constitution was a logical first
step to galvanize reform.

“We have a common understanding that constitutionalism is a central issue
for China’s reform,” said Zhang Qianfan, the law professor who drafted the
petition. “The previous reform was preoccupied with economic aspects. But
we learned from the experiences of the recent two decades that economic
reform can go wrong if it’s not coupled with political reform, or
constitutional reform actually.”

Through the decades, party leaders have paid lip service to the
Constitution, but have failed to enforce its central tenets, some of which
resemble those in constitutions of Western democracies. The fifth article
says the Constitution is the supreme authority: “No organization or
individual may enjoy the privilege of being above the Constitution and the
law.” Any real application of the Constitution would mean severely
diluting the party’s power.

It is unclear whether the latest push will be any more successful than
previous efforts. A decade ago, a similar wave of advocacy failed to
significantly alter the status quo, despite some initially encouraging
words from Hu Jintao, the newly designated president at the time. The
authorities admonished scholars who took part in seminars on the issue,
and propaganda officials ordered the state news media not to publish
articles on calls for constitutional government.

Liberals have been encouraged by a speech that Mr. Xi gave on the 30th
anniversary of the Constitution in which he said, “The Constitution should
be the legal weapon for people to defend their own rights.” He added that
implementation was needed for the document to have “life and authority.”
Analysts say the speech, delivered Dec. 4, was much stronger than the one
given by Mr. Hu on the Constitution’s 20th anniversary. And on Jan. 22,
Mr. Xi said in a speech
<http://news.xinhuanet.com/english/china/2013-01/22/c_132120363.htm> to an
anticorruption agency that “power must be put in the cage of regulations.”

But Deng Yuwen, an editor at Study Times, said he had so far only seen
talk from Mr. Xi. “We have yet to see any action from him,” Mr. Deng said.
“The Constitution can’t be implemented through talking.”

And since taking power, Mr. Xi has appeared more concerned with
maintaining party discipline than opening political doors. In remarks made
during a recent southern trip that have circulated in party circles, Mr.
Xi said China must avoid the fate of the Soviet Union, which broke apart,
in his view, after leaders failed to stick to their socialist ideals and
the party lost control of the military.

In part, liberals advocating constitutional checks on power have been
energized by the party’s takedown of Bo Xilai, the polarizing former
Politburo member who is expected to be prosecuted soon on charges of
corruption and subverting the law.

One journal supported by reform-minded party elders, called Yanhuang
Chunqiu, published a New Year’s editorial
<http://cmp.hku.hk/2013/01/02/30203/> that said fully carrying out the
Constitution would mean “our country’s political system will take a big
step forward.”

Wu Si, the journal’s editor, said in an interview that he expected the
“heightened fervor” surrounding constitutionalism to persist “because
there is more to the issue to discuss.”

Rulers of modern China have never enforced a Constitution that enshrines
the law as the highest authority and guarantees the rights of individuals.
In the late 19th century, as the Qing dynasty waned, intellectuals who
studied Western political systems, including Liang Qichao and Kang Youwei,
lobbied rulers to transform China into a constitutional monarchy.

In 1905, the Empress Dowager Cixi established a constitutional commission
to search the world for political models to adopt. The Qing dynasty
collapsed in 1911, and the Kuomintang government tried its hand at
creating a constitution for the new republic, but nothing took hold.

The Communist Party wrote several constitutions after taking power in
1949. The current version, which has been revised four times and had 13
amendments added, was overseen by Peng Zhen and Marshall Ye Jianying, two
revered Communist leaders.

In all those instances, rulers experimented with a constitution to bolster
the power of the governing body, said Sam Crane
<http://uselesstree.typepad.com/useless_tree/2013/01/confucian-constitution
alism-in-defense-of-freedom-of-expression.html>, a political scientist at
Williams College who specializes in China.

“Constitutions were something that strong states had; therefore, China had
to have one,” he said. “Thus, Chinese constitutions were not really
effective in limiting state power and protecting individual liberties.
That might be changing now.”

Recent attempts by scholars looking to defend the legitimacy of the
Constitution, he said, “might be due to the growth of ‘rights
consciousness’ in the People’s Republic of China in recent years.”

Advocates of constitutionalism say their approach should be more
acceptable to the party than Charter ’08, an online petition calling for
gradual political reforms that secured thousands of signatures but was
banned by officials. One of its authors, Liu Xiaobo, was sentenced to 11
years in prison in 2009 for subversion, and his wife, Liu Xia, has been
under house arrest. Mr. Liu was awarded a Nobel Peace Prize in 2010.

Some party censors have reacted with caution or hostility to the recent
calls for constitutionalism. In recent weeks, the term “constitutional
governance” could not be searched on microblogs. And the petition
organized by Mr. Zhang, which he prefers to call an initiative, has been
scrubbed from many sites on the Internet.

“I take it to mean that the government doesn’t want this to spread too far
domestically,” Mr. Zhang said. “Perhaps they’re not ready yet.”

Nonetheless, talk of constitutionalism has become daily fare on literati
Web sites like Gongshiwang, a politics forum. Typical was a Jan. 24 essay
that ran on the site by Liu Junning, a political scientist, who seized on
Mr. Xi’s most recent remarks on “caging power” and traced the concept to
the Magna Carta and the American Constitution.

“Constitutional governance is restricted governance,” Mr. Lui wrote. “It
is to tame the rulers. It is to shut the rulers in a cage.”

Mia Li contributed research.