Distinguished Chinese Political Activists Discuss Constitutionalism & Political Reform

As part of a great debate among Chinese intellectuals and thinkers that has been unfolding over the past two decades on the question of China's future, the UCLA Asia Institute on February 21 sponsored a symposium of four noted Chinese "neo-Liberals" who presented their answers to the question "Where does China go now?"

The Choices Facing China

Wang Dan, an activist in the “Beijing spring” that led up to the tragic events in Tiananmen Square of June 1989, argued that China today has but three choices: 1) democracy, 2) totalitarianism, or 3) constitutionalism. Democracy, in his view, emphasizes the rights of the majority; constitutionalism the rights of the minority. While this juxtaposition of democracy and constitutionalism may seem unusual, it responds to the realities of China's history over the past half century. First, the Chinese Communist Party (CCP) has always insisted that it is democratic. The PRC often described itself as “a people's democratic dictatorship”: a combination of democracy for the masses and dictatorship over the “exploiting classes.” While in fact there was no genuine democracy for anyone, at least in theory the “masses” enjoyed democracy while the minority (which today is identified as “forces hostile to China's socialist system”) had no rights whatsoever except those the CCP might bestow on them — temporarily. In the past two decades, the rhetoric of class struggle has nearly died out, but the reality of arbitrary rule, and a monopoly of power in the hands of the CCP, continues. Second, in the popular so-called Democracy Wall movement that arose in Beijing in 1979 (so named for the wall where activists posted billboards advocating democracy), and again in the Beijing spring democracy movement of 1989, the word “democracy” was incessantly bandied about, but with little attention to what it means concretely. “Democracy” became in effect a code word for opposition to “the system,” not for a well thought out alternative to the system.

The New Left in China advocates an alternative, but one that in some respects seeks to restore what in some eyes were the strengths of the Mao, pre-reform era. It favors a strong state that will act vigorously to counter what leftists see as the unacceptable inequalities and injustices created by the past twenty years of market-oriented reform. In short, what they advocate is, in Wang Dan's words, soft totalitarianism.

The neo-Liberal constitutionalists, by contrast, favor a state that is strictly limited and governed by the rule of law.

Weaknesses of the Present Constitution

Just as the PRC claims to be democratic, it also claims to be constitutional, at least in the sense that it has a constitution. At the symposium, Yu Haocheng, a distinguished legal scholar, probed the limitations and weaknesses of China's present constitution. First, he pointed out that a genuine, viable constitution must have two indispensable features: protection of the freedom and rights of citizens, and restriction of the power of government. In fact, the present constitution of the PRC places no restrictions on the exercise of governmental power. This is mainly because the CCP opposes separation of powers.

Second, the chair of the Central Military Commission (which ultimately controls China's armed forces) is not appointed to a set term, unlike the general-secretary of the CCP and the president of the National People's Congress (NPC).

Third, there is no effective method for revising the constitution. Now the National People's Congress and its Standing Committee are empowered to revise the constitution. But such a large body cannot be expected to in effect make its own laws unconstitutional. Yu Haocheng himself has proposed that a constitutional implementation commission be created, but this has not been accepted. Although talk continues of various proposals for revision of the current constitution, Yu believes there is no possibility of any radical change coming to light. Instead, at the forthcoming first session of the Tenth National People's Congress, scheduled to meet in March of this year, the best one can expect is piecemeal reform. For instance, it is likely that several ministries will be combined and some functions now performed by the government will be transferred to independent commissions. This is balanced by the likelihood that outgoing President Jiang Zemin's Three Represents theory (the CCP must always represent China's advanced productive forces, China's advanced culture, and the fundamental interests of the overwhelming majority of the Chinese people) will be enshrined in the constitution. This, Yu declared, is a mistake: this so-called theory relates to the CCP, not the government, and should not be written into the constitution.

To address the inadequacies of the current constitution, Yu advocates (1) a fundamental reform of the election system to make it fair and open (now the CCP essentially controls the nomination process); (2) elimination of references to Marxism-Leninism, Mao Zedong Thought, and Deng Xiaoping Theory in the preamble of the constitution; (3) transformation of the NPC from the “highest organ of the state” into a full legislative body, along the lines of the U.S. Senate; and (4) creation of an independent judiciary.

Alternative Constitutions

The symposium did not stop at this sort of criticism, but also presented positive alternatives to the present constitution. As Wang Dan put it, in the past Chinese democracy activists tended only to criticize the system; now they are offering alternatives. A number of activists, resident both in the U.S. and in China, have gotten together several times at Columbia University, Harvard University, and elsewhere to discuss such fundamental questions as: What is a constitution? What should be the role of human rights in the constitution? What economic system should be enshrined in or associated with the constitution? The result of these discussions has been several new, draft constitutions. Whether this is an exercise in futility remains to be seen. But, there is ample evidence that momentum for constitutionalism is growing in China, and is gaining support from previously unrecognized sources.

The Forces Favoring Constitutionalism

Wang Juntao, one of the first in contemporary China to undertake serious social survey research to back up his reformist views, listed the various forces arrayed behind constitutionalism.

First, many of the old guard in China say they favor constitutionalism, but, according to Wang Juntao, what they mean by constitutionalism is different from what the neo-Liberals mean. Many of the old elite do not support immediate democratization, although they support the rule of law.

Second, the new business class that has emerged in China during the reform era plays a major role in debates over China's future.

Third, new elites — lawyers, journalists, and so on — play an important role by introducing and fostering liberal, Western norms.

Fourth, liberal activists take the rule of law as the basis for their strategy for fostering constitutional government.

The CCP is attempting to institutionalize its rule, which of course entails among other things the establishment and enforcement of rules and regulations. But in Wang Juntao's view institutionalization per se does not equate to the rule of law or constitutionalism. For instance, imperial China had a highly developed legal system, but its laws, Wang averred, could be arbitrarily changed. In the past century, China had a chance to erect a constitutional system, but in the face of warlord depredations, the struggle between the Nationalists and the Communists, etc., it failed to do so. What is needed now, he argued, is to develop ideas that will persuade the Chinese people that the rule of law and constitutionalism will meet their needs. This will involve more than merely criticizing the government; it will necessitate preparation of a clear, careful operational plan.

Liu Junning, a distinguished scholar at the Chinese Academy of Social Sciences, also presented his list of key players in the Chinese constitutional movement, a list that overlapped to some extent with that of Wang Juntao, but was more extensive:

1) Liberal intellectuals are the major promoters of constitutionalism in China. Using the Internet and the media, they have introduced and spread the basic ideas of constitutionalism and have acted to convince the people of China that constitutionalism is the country's best hope for the future.

2) Dissidents, both inside and outside of China, through their various activities, are applying pressure on the government to start constitutional reform.

3) Emerging business communities, although they do not directly demand constitutionalism, seek to protect their property rights. In so doing, they have introduced the idea that the law should protect private property.

4) “Refomists/insiders,” who are members of the establishment, are using their power and authority to push for constitutional reform.

5) International players are also playing an important role. U.S. foundations and civil society organizations have been instrumental in organizing seminars and public presentations by Chinese scholars of constitutionalism.

6) Local governments in some local locations (such as Shenzhen and Hainan Island) are vigorously pursuing development and reform, and this could lead to more initiatives that promote constitutionalism.

7) Corrupt officials are useful for they remind the Chinese people of how necessary reform is.

8) The media, especially young Chinese journalists, have been instrumental in organizing seminars and conferences on constitutionalism, and have courageously acted to popularize constitutionalism, doing everything possible short of what is expressly prohibited by the government.

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In the question-and-answer period that followed the symposium, Professor Randall Peerenboom (School of Law) suggested that more attention should be paid to the content of any possible new constitution. Wang Dan replied that this was a relatively small matter. The important question was to compel the government to abide by the constitution. As Wang Dan pointed out, China now has a constitution, but since the government does not abide by it, it is irrelevant.

Wang Chaohua, a UCLA graduate student and an important leader in the 1989 Tiananmen democracy movement, asked if a leading role for veteran, perhaps “retired,” leaders should be institutionalized in a new constitution. The panel thought not. In fact veteran leaders are continuing to hold on to power, sometimes through formal institutions — for instance, the Central Military Commission, which was headed by Deng Xiaoping after Deng ostensibly retired from his other government and Party posts, and is likely to he headed by Jiang Zemin after Jiang “retires” in March — and sometimes through informal personal network. The latter especially is a problem because it lies beyond legal control.

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Video clips of the symposium will be available on the Asia Institute website soon.

Reports on the symposium are available at the Daily Bruin website www.dailybruin.ucla.edu/news/articles.asp?ID=23069

For the current constitution of the PRC (adopted in 1982, and revised in 1988 and again in 1999) http://english.peopledaily.com.cn/constitution/constitution.html

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Wang Dan was a twenty-year-old student at Beijing University when he came to international attention as one of the leaders of the pro-democracy student demonstrations in Beijing's Tiananmen Square in the spring of 1989. Following the violent suppression of the demonstrations on June 4, Wang headed the Chinese government's most-wanted list. He was arrested and sentenced to four years in prison. He was released from prison in 1993, but was detained in 1995. After holding Wang without charges for seventeen months, the Chinese government formally arrested him in October 1996. He was then convicted of attempting to subvert China's government and was sentenced to eleven years in prison. On April 19, 1998, Chinese authorities released Wang from prison and placed him on a plane to the United States. A month later he spoke at UCLA: www.isop.ucla.edu/eas/wang-dan.htm. He is now studying Chinese history at Harvard University.

Yu Haocheng is a distinguished legal scholar and was the Dean of the Institute of Chinese Law and Social Development. Known for advocating reform of China's legal system, Yu also headed the Public Security Bureau's Qunzhong (Masses) publishing house and published the first Chinese translation of Alexandr Solzhenitsyn's Gulag Archipelago. In 1988, he joined many activists in writing for the short-lived journal New Enlightenment. Following the 1989 crackdown, Yu was detained for a year and for the next four years was not permitted to leave China. This changed in 1994, when concern over the U.S. Congress's willingness to continuing to extend China most favored nation status caused the authorities to let him travel to the U.S. Since then, Yu has been a director of the organization Human Rights in China and has been a visiting scholar at Columbia University, the University of Wisconsin, and UCLA.

Wang Juntao was born in 1959 and was a high school student at the time of the 1976 anti-Gang of Four demonstrations in China. He authored the most famous of that movement's protest poems:

In my grief I hear demons shriek;
I weep while wolves and jackals laugh.
Though tears I shed to mourn a hero,
With head raised high, I draw my sword .

[Xiao Lan, ed. and trans., The Tiananmen Poems (Beijing: Foreign Languages Press, 1979), 24.]

Wang was subsequently sentenced to thirteen years in jail. The fall of the Gang led to his release after seven months. He went to Beijing University and earned his degree in physics in 1981. He participated in subsequent pro-democracy protests and in the late 1980s co-founded the Beijing Social Economics Studies Institute. This enterprise conducted surveys, sponsored social research, and pushed political and economic reform. Wang advised the student leaders of the 1989 Tiananmen Square Democracy Movement and was later labeled by the Chinese government as one of the "black hands" behind the demonstrations. In fact, he had argued with student leaders and called for a moderate course. He was arrested in fall 1989 and in 1991 he received a sentence of thirteen years. While in jail he contracted hepatitis B. He was given a medical release in 1994 and came to the United States. Wang is a doctoral candidate in political science at Columbia University.

Liu Junning is a distinguished scholar from the Chinese Academy of Social Sciences. He earned his Ph.D. in political science at Beijing University. He is the author of, among others, Republic, Democracy, Constitutionalism: Studies of Liberal Thought and Beijing University and the Liberal Perspective, and has been recently impressed by the liberalizing impact of the rapid rise in Internet use in China. In 1999 he was among the liberal thinkers and writers "blacklisted." His 1998 essay "What are Asian Values?" is included in The Chinese Human Rights Reader (2001). Liu has spoken at many U.S. venues including the Cato Institute, Harvard University, and the University of Chicago.