Reformers aiming to get China to live up to own constitution

By Edward Wong and Jonathan Ansfield  /  NY Times News Service, BEIJING

Thu, Feb 07, 2013 - Page 9

After the chaos of the Cultural Revolution, the surviving Chinese Communist Party (CCP) 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 China would never again suffer from the whims of a tyrant.

The resulting document guaranteed full powers for a representative legislature, the right to ownership of private property, and freedoms of speech, press and assembly. However, the idealism of the document’s creators 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 Chinese Vice President Xi Jinping (習近平), the party’s new general secretary, and other leaders, to open up China’s party-controlled system. Some of 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, including ones inside the party, have joined the effort. Several influential journals and newspapers have published editorials 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 CCP’s Central Party School, where Xi served as president until this year. That weekly newspaper ran a signed editorial on Jan. 21 that recommended that the CCP 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 in November last year, 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 (張千帆), 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 Chinese President Hu Jintao (胡錦濤), who had been the newly designated president at the time. The authorities admonished academics 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 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 on Dec. 4 last year, was much stronger than one given on the constitution’s 20th anniversary. And on Jan. 22, Xi said in a speech to an anti-corruption agency that “power must be put in the cage of regulations.”

However, Deng Yuwen (鄧郁文), an editor at the Study Times, said he had so far only seen talk from Xi.

“We have yet to see any action from him,” Deng said. “The constitution can’t be implemented through talking.”

And since taking power, 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, 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 (薄熙來), 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 that said fully carrying out the constitution would mean “our country’s political system will take a big step forward.”

Wu Si (吳思), 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 (梁啟超) and Kang Youwei (康有為), lobbied rulers to transform China into a constitutional monarchy.

In 1905, the Empress Dowager Cixi (慈禧太后 ) established a constitutional commission to search the world for political models to adopt. The Qing Dynasty collapsed in 1911, and the Chinese Nationalist Party (KMT) government tried its hand at creating a constitution for the new republic, but nothing took hold.

The CCP 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 (彭真) and Marshal Ye Jianying (葉劍英), two revered communist leaders.

In all those instances, rulers experimented with a constitution to bolster the power of the governing body, said Sam Crane, 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 academics 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 (劉曉波), was sentenced to 11 years in prison in 2009 for subversion, and his wife, Liu Xia (劉霞), has been under house arrest. Liu Xiaobo 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 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,” 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 (劉軍寧), a political scientist, who seized on Xi’s most recent remarks on “caging power” and traced the concept to the Magna Carta and the US Constitution.

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