Constitution Debate Holds Broader Reform Implications07-16 14:14 Caijing
By staff reporter Xu Qianchuan
A series of articles published since May 21 by the Chinese Communist Party's bi-weekly magazine Red Flag arguing against the establishment of constitutional government in China have triggered widespread media speculation and intensive academic discussions.
Three schools of thought have arisen as a result of the ongoing debate: "anti-constitutionalists" who oppose any form of constitutional government in China, those who support the establishment of socialist constitutional government, and those who believe socialism and constitutionalism are incompatible, as represented by Peking University Law School Professor He Weifang and East China University of Political Science and Law Professor Zhang Xuezhong. The latter faction argues in favor of drawing up a new constitution.
The core differences between the three viewpoints reflect diverging opinions about China's future political reform path.
If the Chinese government refutes the possibility of the coexistence of socialism and constitutional government, then the future political reform path will go one of two ways: adhering to the old system while resolutely rejecting constitutionalism and adjusting specific mechanisms; or completely overthrowing the old regime and drawing up an entirely new constitution.
If concepts of socialist constitutional government are established, it is possible for China to march towards a path of modern democratic liberal politics by relying on the existing constitution to protect fundamental rights and ensure the independence of the judiciary and the implementation of judicial review.
Throughout China's 30 years of reform and opening up, the Chinese government has conducted a number of constitution-oriented reform experiments, both in terms of its economy and political system. The market economy in China, once considered to be the core content of capitalism, gradually emerged and achieved incredible results; at the same time, private property and the private economy, which were once looked upon with great suspicion, developed rapidly to become pillars of China's economic growth. However, in his article A Comparative Study of Constitutional Government and People's Democratic System for Red Flag Magazine, Beijing law scholar Yang Xiaoqing wrote that a market economy based on private ownership is considered to be one of the key elements of constitutionalism.
Chinese political reform started in the 1980s. Various reform measures such as Deng Xiaoping's reform of the Party and state leadership system aimed to resolve a number of issues, including "usurpation of government by the Party" and "over-concentration of power."
At the 13th National Party Congress in October 1987, with the "separation of the functions of the Party and the government" as the core, it was proposed that "the Party lead the people in the development of the Constitution and laws." Moreover, according to the directive, the Party "should operate within the scope of the Constitution and laws." This directive happened to coincide with the spirit of modern rule of law and the constitutional government's requirement to restrict power.
From that time on, reports from the National Representative Congress have frequently featured the issue of political reform. The 18th National Party Congress report set aside an entire article for political reform, giving the topic an unprecedented degree of attention.
During a congress marking the 30th anniversary of the Constitution's implementation on Dec. 4, 2012, Xi Jinping, general secretary of the Communist Party of China (CPC) Central Committee and chairman of the CPC Central Military Commission (CMC), said the value and authority of the Constitution depend on implementation.
This is what is advocated by scholars who propose the concept of socialist constitutional government. According to them, constitutionalism means the enforcement of the Constitution.
Full article in Chinese: http://magazine.caijing.com.cn/2013-07-15/113041367.html
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