A tussle in China over the Communist Party bowing to the Constitution

It is hard to imagine bloggers and tweeters in most parts of the world working themselves into a lather of intellectual excitement about “constitutional government.”

Yet in China last Wednesday, the phrase was a trending search term on the country’s most popular social media platform, Sina weibo, yielding nearly 6 million results. By Friday, official censors had deleted nearly three quarters of those comments, in a sign that the subject is of more than academic interest.

Indeed, it poses a question central to China’s future: Could the ruling Communist Party maintain its grip on power if it respected the national Constitution?

“Constitutionalism” has become a code word in China for broad political reform, including the rule of law. The concept is a battleground for liberals and conservatives vying for influence at the top of the Communist Party as a new government establishes itself in Beijing.

This week, in a salvo of strongly worded articles in the official press, conservatives launched a new offensive against the idea of constitutional rule. Reformers cringed, and the Internet lit up in angry response.

“Behind the words “constitutional government” hides the whole project of transforming Chinese institutions and politics,” explains Stephanie Balme, a professor of law at the Institut d’etudes politiques in Paris. “It’s the only way people can talk about politics.”

Red flag

The Communist Party’s bi-weekly Red Flag Magazine struck out on Tuesday with a theoretical article dismissing constitutional government as “not suitable for socialist countries.” The system “belongs to capitalism and bourgeois dictatorship,” argued Renmin University law professor Yang Xiaoqing, not to China’s “people’s democracy.”

The next day, Global Times, a tabloid belonging to the Communist Party, took up the cudgels. Constitutionalism was merely “a new way to force China to adopt Western political systems,” the paper said in an editorial. “Constitutionalism's demands are deeply opposed to China’s current Constitution,” it added.

Such authoritative condemnations took reformers by surprise. The new president and head of the Communist Party, Xi Jinping, had raised their hopes last December with a speech in which he described the Constitution as “the legal weapon for people to defend their own rights.” He said the charter must be applied if it were to have any “life and authority.”

Then three months ago, just before taking over the presidency, Mr. Xi told a meeting of China’s top Communists that “no organization or individual should be put above the Constitution or the law,” according to Xinhua, the state-run news agency.

“Things seem to have quite dramatically changed,” since that meeting, says Zhang Qianfan, a constitutional law expert at Peking University and one of the leaders of the constitutionalist movement here. “They have decided to turn against constitutionalism, and that signifies the premature end to political reform” under the new administration, he adds gloomily.

Other observers, however, are less certain that the battle is over. “There is a massive groundswell of interest” among ordinary Chinese in “the idea of a Constitution limiting state power,” says David Kelly, founder of China Policy, a consultancy in Beijing. “And there are people at the top who see the writing on the wall.”

The Constitution has become a flashpoint, analysts say, because it's a remarkably democratic document. It just has not been implemented since it was adopted in 1982.

'Rights?' Not really.

Article after article protects citizens’ rights such as freedom of speech and assembly – rights that are routinely violated. Reformers say they want nothing more than that the government should live up to its words. “Constitutionalism means nothing but the implementation of the Constitution,” says Professor Zhang.

Key to his demands is that the authorities should obey Article 5 of the Constitution, which reads, in part, “no organization or individual may enjoy the privilege of being above the Constitution and the law.”

 Prominent real estate developer and widely-followed blogger Ren Zhiqiang put the argument succinctly on his weibo account on Friday. “Constitutionalism is very simple,” he wrote. “It means putting power in a cage and giving the key to the people.”

To traditionalists, however, this is unthinkable. In Professor Yang’s interpretation, “the Constitution sets the basic principle to uphold the Chinese Communist Party’s rule,” thus putting the party above the Constitution, she wrote in her Red Flag article.

“The Communist Party rests on the notion that nobody limits its power,” adds Dr. Kelly. “When they say that nobody is above the law, they don’t mean the party core,” even if that violates the stipulations of the Constitution.

“Everything is in flux,” says Keith Hand, an expert in Chinese law at the University of California, Hastings College of the Law in San Francisco. “There is great ferment and great debate in China over how you balance the party’s leadership with socialist rule of law and how you give some meaning to the rights set out in the Constitution. These are fundamental political questions that have not been resolved.”