The connotation and function of the
constitutional consensus: from the text of
the Chinese Constitution.
Mr. Mai Cheng
Associate Professor, Law School, Nanchang University, China, [email protected]
I. Introduction: two possible meanings of the constitutional
consensus
In the discussion of a future possible constitution reform in China, some scholars
have been emphasizing the importance of a constitutional consensus in collecting
support for constitutional reform and in generating a possible well accepted system
design for the reform. Since last year with the emergence of a semi-official
anti-constitutionalism movement in China, the importance of constitutional consensus
has been correspondingly stressed by some eminent constitutional scholars in China.
Interestingly or even surprisingly the term constitutional consensus itself, its
connotation and its function have so far received little direct research endeavor.
The term of constitutional consensus (宪法共识)doesn’t appear in the text of the
Chinese constitution. Since there is no functioning formal constitutional interpretation
mechanism in China, 1 we could only refer to the authoritative dictionary
interpretation to understand its connotation under the Chinese context, which defines
consensus (共识) as “The identical reflection which comes from brains of different
persons on the objective world.” 2
When the adjective constitutional is added to consensus, the object of the term, i.e.
constitution, might be clearly defined, but its connotation would at the same time
become ambiguous, because like any other department of law, the term constitution
contains both meanings of prescriptions of the constitution and the implementation of
the constitution. The former connotation focuses itself on the normative aspect of the
constitution, which is a description of norm-pyramid in the constitution; the latter
connotation focuses itself on the realization of the constitutional prescriptions in the
realities, which is an objective outcome of the operation of the concepts and theories
1
Art. 67 of the Chinese Constitution authorizes the Standing Committee National Congress the power to interpret
the Constitution, which is the only way to make an authoritative interpretation to the Constitution.Until now the
Standing Committee has never exercised this power.
Article 67 “The Standing Committee of the National People’s Congress exercises the following functions and
powers: (1) to interpret the Constitution and supervise its enforcement;” The Constitution of China.
2
Chinese Academy of Social Sciences: Dictionary of Modern Mandarin(6th Version), the Commercial Press:
2012, p457, p1095.
which is contained in the constitutional prescriptions. Out of the ambiguity come two
possible interpretations on the constitutional consensus: consensus on the text of the
constitution, and consensus on the practices of the constitution.
The consensus on the text of the constitution might be the outcome of a
one-way cognitive process on a stable recognition object. In contrast, if one agrees
that the final purpose of the human being to observe the world is to change the world
and to guide his life, then a consensus on the practices of the constitution should be a
conclusion on the real practices of the constitution and a precise description of the
constitutional order. From this point of view, consensus on practices of the
constitution is identical with the real practices of the constitution.
Unconstitutional practices happen in every country, which proves the separation
between these two consensuses. In those countries with a written constitution, the
consensus on the text of the constitution serves as the basis for the consensus on the
practices of the constitution. Only with the approximate overlap of these two
consensuses, one might agree, that the constitution of this country has been strictly
adhered to. When there does be consensus on the text of the constitution, but the text
is hardly adhered to in the practice, in order to eliminate the contradiction between
text and practices of the constitution, some people might regard certain conventions
of the political activities, which deviate from or even contradict to the formal
constitutional prescriptions, as the real constitutional norms of this country. 3 These
bold opinions might further prove the possibility of the separation between consensus
on the text of the constitution and consensus on the practices of the constitution.
People could hardly say that there is already a consensus on the text of the
Chinese constitution. This lack of textual consensus is further proved by the
anti-constitutionalism movement since May of 2013.4 This movement declares the
constitutionalism is only a historical heritage of the western world, which, as Mar had
already found, is merely a trick for the capitalist rule over the people. The people’s
democracy set out in the Chinese Constitution prevails over the Constitutionalism in
fulfilling a real democracy. With an introduction of constitutionalism into China this
real democracy together with the rule of the Communist Party will be ruined, which is
definitely a tragedy for the Chinese people.
Concerning the real practices of the Chinese constitution, such as the real
authority of the Constitution in the state life, there are more disputes.5 Facing the lack
3
“This is a political constitutional structure, which could adapt itself to reform or even unconstitutionalities, and
could defend against the backlash of a revolution. Just this structure is the very essence of the Constitution of 1982
which deserves most attention and reflects the nature of the Constitution of 1982 as a reform Constitution”, Gao
Quanxi: “Revolution, Reform and Constitution: the Constitution of 1982 and its Logical Evolvement, and
interpretation from the standpoint of political constitution” Peking University Law Journal No.24, No5(2012),
pp.907-926.
4
Some typical articles representing this movement include: Yang Xiaoqing: “Comparative research on the
Constitutionalism and the People’s Democracy”, Red Flag Manuscript No. 10, 2013, pp. 4-10; Zhen Zhixue:
“Make Clear the Nature of ‘Constitutionalism’” , Construction of the Party No. 6 2013, pp 29-31; Ma Zhongcheng:
“ To Practice the so called Constitutionalism in China is to Get Blood form Stone”, People’s Daily(oversees
version) August 7th, 2013.
5
For instance, Han Dayuan says: “First of all, no respect for the text of the Constitution, no respect for the
constitutional rules, these phenomenons have already become urgent problems to be solved.” Han Dayuan:
“Constitution and Social Consensus: from the Rule of the Constitution to the Governance of the Constitution”,
SJTU Law Review No. 1, 2012, p. 12.
of both these two consensuses, the constitutional realities are really problematic. In
order to find a way out of this predicament, to form both kinds of consensuses and to
eliminate the distance between these two consensuses, there are two problems needed
to be solved: what is the real situation of the consensus on the text of the constitution
in China? With what preconditions could the consensus on the text of the constitution
be transformed into consensus guiding the practices of the constitution?
II. The consensus on the text of the Chinese constitution
exists on the value of the Constitution
Content of the modern constitution could basically be divided into two parts:
prescriptions on the constitutional values and those on the power mechanism.
Through the socialist revolution movement from the west to the east, the Chinese
Constitution learned modern constitutional institutions which originated from the
western world. The fundamental task of the modern constitution is protection the
fundamental right of the citizens, which is also the highest value and ultimate goal of
modern constitution. In pursuing this goal, besides laying out the list of the
fundamental rights, the modern constitution further defines the allocation and
operation mechanism of the state power, with the consideration to prevent the stat
power from infringing upon the fundamental rights, while also encouraging the state
power to contribute to the realization of these fundamental rights.
However, because of certain ideological backgrounds, the difference between the
constitutional order in the western world and China has been a central topic in the
constitutional discussion in China. Ironically, just for the existence of this central
topic, the constitutional order of the western world has been serving a factual
reference standard between different viewpoints. For example, even for those who
emphasize the “Chinese character” of the Chinese Constitution, they also tend to
regard the constitutional order of the western world as a proof for the Chinese
character. 6 Although the universal applicability of the western constitutional orders
might be denied, its status as a universal reference standard might be admitted by all
parties. Hence, this paper would also take use of the western constitutional order as a
reference standard.
After the development of more than two centuries, the constitutional orders of
the western have been sharing many common values, which are described in certain
international human rights treaties, and these treaties were also passed under the
leadership of the western world. In this paper we might take the relative younger
constitution in these countries, i.e. the Basic Law for the Federal Republic of
Germany, as a central example. The Basic Law for the Germany prescribes a “free
democratic basic order”, and any attack on this Basic Order might result in
deprivation of fundamental right of the citizen, 7prohibition of association8 or ban of
6
See Yang Xiaoqing: “Comparative Research on the Constitutionalism and the People’s Democracy”, Red Flag
Manuscript No. 10 2013, pp 4-10.
7
Art. 18, GG.
political party.9 This Basic Order is consequently the essence of the constitutional
order set out by the Basic Law for Germany. According to the detailed definition
given by the Federal Constitutional Court of Germany,10 the Basic order might be
divided into seven principles, which include: (1) protection of human rights; (2)
people’s sovereignty: (3) separation of powers; (4)responsible government; (5) rule of
administrative law; (6) judicial independence and (7) multiparty system. In the
prescription of the Basic Law and the interpretation of the Federal constitutional
Court, one could find no hieratical relationship between these seven principles, which
might lead to the same constitutional statuses among them.
For the four principles: protection of human rights, 11 people’s sovereignty,12
rule of administrative law 13 and responsible government, 14 there are explicit
recognitions in the current Chinese Constitution. Upon these four principles with
explicit constitutional prescriptions, the consensus on the text should be expected, or
else the formal authority of the Constitution in the state life and the legal system will
be totally denied. Concerning the rest of the three principles, one might find no
explicit constitutional recognition, while there is no opposite prescription either, such
as “there should be no separation of power in the operation of the state power.”
Furthermore, one might even find certain constitutional articles which might serve as
an implicit foundation for these principles.15 As a result, a simple rejection of the
constitutional relevance of the three latter principles to the Chinese Constitution might
be imprudent.
8
Art.9 Abs. 2. GG.
Art 21 Abs. 2, GG.
10
„Zu den grundlegenden Prinzipien dieser Ordnung sind mindestens zu rechnen: die Achtung vor den im
Grundgesetz konkretisierten Menschenrechten, vor allem vor dem Recht der Persönlichkeit auf Leben und freie
Entfaltung, die Volkssouveränität, die Gewaltenteilung, die Verantwortlichkeit der Regierung, die Gesetzmäßigkeit
der Verwaltung, die Unabhängigkeit der Gerichte, das Mehrparteienprinzip und die Chancengleichheit für alle
politischen Parteien mit dem Recht auf verfassungsmäßige Bildung und Ausübung einer Opposition.“ BVerfGE 2,1,
13
11
Art. 33: “The state respects and protects human rights”. The Constitution of China.
12
Art. 2: “All power in the People’s Republic of China belongs to the people.” The Constitution of China
13
Art. 5: “ The People’s Republic of China governs the country according to law and makes it a socialist country
under rule of law……All State organs, the armed forces, all political parties and public organizations and all
enterprises and institutions must abide by the Constitution and other laws. All acts in violation of the Constitution
or other laws must be investigated.” The Constitution of China.
14
Art. 3: “All administrative, judicial and procuratorial organs of the State are created by the people’s congresses
to which they are responsible and by which they are supervised. ” The Constitution of China.
15
For the principle of separation of powers, Art. 57 of the Constitution defines: “The National People’s Congress
of the People’s Republic of China is the highest organ of state power.” Art. 3 further declares: “All administrative,
judicial and procuratorial organs of the State are created by the people’s congresses to which they are responsible
and by which they are supervised.” Under these two articles, one should certainly not expect equal statuses
between the National people’s Congress and any other state organs. But the equal statuses among the other four
state organs could still be reasonable.
With an explicit description of the supremacy of the National People’s Congress and lack of constitutional
review power of the court, the principle of judicial independence is insufficient in its constitutional basis. Art. 126,
however, still declares : “The people’s courts exercise judicial power independently, in accordance with the
provisions of law, and not subject to interference by any administrative organ, public organization or individual.”
Based on this prescription the judicial independence might be expected between the judiciary and other state
organs.
Even for the most controversial principle in the constitutional discussion of China, a multiparty system, we
could still find certain discussion room within the Chinese Constitution, such as the recognition of “the system of
the multi-party cooperation and political consultation led by the Communist Party of China” in the Preamble of the
Constitution, and Art. 5 further prescribes “…… all political parties ….. must abide by the Constitution and other
law”, here the plural “parties” is used.
9
After all, the values expressed by the three latter principles should not be
regarded as the substantive values of modern constitution. Rather, all these three
principles only serve as subsidiary means for the promotion of other higher and
substantive constitutional values, such as protection of human rights. But the logic of
the western constitutional order and its history have proved that without these
“subsidiary” means other “higher” values can’t be realized in the constitutional
practices, and hence all these principles, no matter their status, become the
indispensable elements of the constitutional order in any western country.
The similarities between the Chinese Constitution and its western counterparts
are actually beyond the scope of these seven principles. Let us take the Basic Law for
Germany again as an example. Outside the definition of the “free democratic basic
order” from the Federal Constitutional Court, the Basic Law further defines the social
state and federalism for the state of Germany,16 and these both principles aren’t
amendable either. The Chinese Constitution also defines the Socialism as a basic
constitutional structure of the state. 17 In the Chapter I “General Principles” and
Chapter II “The Fundamental Rights and Duties of Citizens” there are furthermore
plenty of articles defining the “socialist ownership” and social rights of the citizens.
As for the federalism or recognition of the local autonomy, Art. 3 of the Chinese
Constitution confirms the importance of the “initiative and enthusiasm of the local
authorities”, Section 6 “The Organs of Self-Government of National Autonomous
Areas” of the Chapter III “The Structure of the State” makes relative concrete
structural design for these Areas, which theoretically enjoy much autonomous power.
The two Special Administrative Regions of Hong Kong and Macau are entitled even a
final judiciary power.
Judging from the current discussion on the Chinese Constitution, in the textual
interpretation of the Chinese Constitution there is actually few disputes on the values
of the Chinese Constitution, even taking the difference between the Chinese and
western constitutions into consideration. With a detailed layout on the protection of
the fundamental rights of the first generation and an emphasis on the citizens’ right of
the second generation, one might find more “modern” character from the text of the
Chinese Constitution. But when the attention is turned to the power mechanism, there
are certainly many more disputes reflected by the current constitutional discussion in
China, which leads to a factual lack of consensus. Judging from the
anti-constitutionalism movement since last May, even for those who reject the
applicability of constitutionalism in China, they cast little doubt on the value
similarities among the modern constitutions. Concerning the constitutional power
mechanism, however, many more disputes emerge. 18 From the point of those
16
„Die Bundesrepublik Deutschland ist ein demokratischer und sozialer Bundesstaat.“ Art. 20, GG.
Art 1: “The socialist system is the basic system of the People’s Republic of China”. The Constitution of China.
18
For example, Prof. Yang Xiaoqing presents her conclusion of the essential differences between the Chinese and
the western constitutions from five aspects: ownership, parliamentary democracy and people’s representative
democracy, separation of power, judicial independence and the nationalization of the army. In judging the good
and bad of these two kinds of constructional systems, her judgment standard still relies on the conventional
constitutional principles like “essential interest of the largest people”, “all the power belongs to the people” and
“real democracy”. Prof. Yang illustrates inferiority of the western constitutions and constitutionalism with their
hypocrisy, which means the practices of the western constitutions betray their constitutional promises. Although
Prof. Yang doesn’t touch the highest value of the modern constitution, but it is a reasonable conclusion to say, that
17
challengers against the constitutionalism, the definition and operation of certain
power mechanism principles, such as the multiparty system, have risen to the highest
principle of the constitution which determines the operation of the other constitutional
principles.19
Generally speaking, in the textual interpretation of the Chinese Constitution, the
closer to the constitutional value of the Chinese Constitution, there are more
consensuses; the closer to the power mechanism, there are less consensuses.
III. The key to the consensus on the practices of the
constitution lies in the power mechanism.
We’ve decomposed the vague concept constitutional consensus into two sub
concepts: consensus on the text of the constitution and consensus on the practices of
the constitution. Based on our further division of the contents of the constitution into
the constitutional values and power mechanism, four kinds of consensuses come into
our analysis:
Two Meanings of the word “constitution”
Text of
Practices of the
the constitution
constitution
Constitutional
Consensus I
Consensus III
Contents of
Values
the
Power
constitution
Consensus II
Consensus IV
mechanism
In this theoretical circle of the four consensuses, consensus on the values of the
constitution seems to the theoretically logical start point for the power mechanism,
Prof. Yang doesn’t deny the higher constructional status of the people’s sovereignty. It is interesting to see that Prof.
Yang allocates in her paper the “human right and the supremacy of the citizen’s right” to the non-critical category
of the elements and thoughts of the constitutionalism. Yang Xiaoqing: “Comparative Research on the
Constitutionalism and the People’s Democracy”, Red Flag Manuscript No. 10 2013, pp 4-10. Similar viewpoints
see: Ma Zhongcheng “The Lie of the American Constitutionalism”, People’s Daily (oversees edition) Aug. 6, 2013.
19
“The demands of the ‘constitutionalism’ in China are very clear, and their purpose is the abandonment of the
leadership of the Communist Party of China, to overturn the socialist government.” Zhen Zhixue: “Make Clear the
nature of ‘Constitutionalism’” , Construction of the Party No. 6 2013, p30.
and in the practices of the constitution, the operation of the power mechanism is
targeted at the realization of the constitutional values. But the state power mechanism
which apparently enjoys only a subsidiary status in this theoretical circle does be the
key to the realization of the constitutional values and to achievement of a general
constitutional consensus.20
First, the constitutional description of its value tends to make use of a highly
abstract phraseology, which leads to the highly flexibility of the connotation and
extension of the various constitutional rights and principles. These abstract definitions
also frequently result in the tensions among the constitutional rights and principle
themselves. For instance, the conflicts between the freedom of speech and human
dignity, or between the people’s sovereignty and judiciary independence have been
vexing problems for constitutional study. In the practices of constitution, when some
of these theoretical difficulties turn to be real constitutional disputes, a pure
theoretical investigation could hardly bring forward a solution which could be
accepted by all sides. In this moment, a state organ which possesses both the
normative and empirical authority is needed to select and balance between all these
contending constitutional values and principles, and finally to give a concrete answer
to a concrete question. The existence of this authoritative state organ depends largely
on the consensus on the power mechanism both in the text and practices of the
constitution which can’t emerge from only the consensus, if there does be one, on the
value of the constitution.
It might be a good example to this theoretical conclusion that the relative higher
degree of consensus on the textual value of the Chinese Constitution fails to generate
automatically a consensus on the power mechanism in the practice of the Chinese
Constitution, such as a clear constitutional status for the Communist Party in China.
The integration process of the EU has also offered us another good example.
Protection of the fundamental rights of the citizen and realization of the human
dignity might be read as the well accepted consensus in the value description and
practices of the constitutions of the European Countries. Besides other international
treaties protecting human rights, the European Convention on Human Rights of the
Council of Europe provides a further protection for them, and all the 27 members of
the European Union are member states of this treaty. But this high consensus on the
constitutional value doesn’t solve the obstacles for the integration of the EU. In 2004,
when the Treaty Establishing a Constitution for Europe planned to reform the decision
making institution of the EU dramatically, such as to substitute the principle of
“effective consensus” for the “unanimity”, the Treaty were rejected in the
referendums of France and Netherlands, which was a big frustration in the integration
of Europe.21
Second, constitution is a legal rather than a religious document. It mainly deals
20
Some Chinese constitutional scholars might use the term “constitutional consensus” with this very meaning. For
example, Prof. Zhang Qianfang points out: “as a system design which could be accepted by the moderate left and
right side, the constitutional democracy represents the future of Chinese reform.” Zhang Qianfan: “Constitutional
Democracy should be the basic Consensus.” Yanhuangchunqiu No. 6 2012, p. 65. The “constitutional consensus”
in Prof. Zhang’s mind focuses itself obviously more on the system design of the power mechanism.
21
Thomas König, Jonathan B. Slapin: “ From Unanimity to Consensus: An Analysis of the Negotiations at the
EU's Constitutional Convention”, World Politics, No. 58, No. 3 (Apr., 2006), pp. 413-445.
with the material problems of the people living in real life, not some transcendent
moral questions. Its authority could only be enhanced by its implementation, not by
some “loyal” belief. Even for the most abstract ideas of the constitution, such as
realization of the human dignity, their fulfillment depend largely on the acquirement
and distribution of certain material interests as well, which connect closely with the
power mechanism. The modern constitution, moreover, regards its value more as the
consequence of the social evolvement than as a supreme demand with transcendent
meaning to the society. The constitution hence can’t create a value for the country;
rather, the constitutional value should accept and admit the established value of the
country. The most important task for the implementation of constitution is therefore
establishment and operation of a feasible power mechanism. Only in the running of
this mechanism, the realization of the constitutional values could be evaluated and
possible adjustment or reform to the power mechanism would be thereafter introduced
to better realize these values.
Consequently, albeit the theoretical priority of the constitutional values over the
power mechanism, the key to the implementation of the constitution lies in a power
mechanism which could transform itself from prescriptions on paper into
constitutional practices in realities. The history of bourgeois revolution and its
constitutions making process have already proved that although the protection of the
human rights was their more significant political slogan, the reform of the power
mechanism had always been earlier than an introduction of the bill of rights into the
constitution.22 When the flexibility of the connotation of the fundamental rights and
human dignity is further taken into consideration, it could be predicted, that even in
those countries with good established constitutionalism, new questions on
constitutional values would still emerge, 23 which would conversely constitute a
challenge to the power mechanism.
In conclusion, the best criteria for the implementation level of the constitution in
one country is not the realization level of the human rights and dignity under the
concrete context of this country, but the adherence to the power mechanism set out in
its constitution. Consensus on the power mechanism is accordingly the key to the
general consensus on the constitution.
Third, just because of its secular character, modern constitution is not able to
play a role as the main spiritual foundation for the whole country in the constitutional
reform. When someone expects to transform the constitutional consensus into social
value consensus through education and propaganda, and then to influence the design
and operation of the power mechanism of the constitution, his expectation would fail,
because this plan is precisely in conflict with the logic of constitutionalism, which
regards the constitutional values as a result rather than the generator of the social
value.24After the secularization of the political life, government tends to be treated as
22
For example, the Bill of Rights of the Constitution of the USA appeared to be the first ten amendments of the
Constitution; Canada gained its independence in 1867, not until 1982 had it adopted the Canadian Charter of
Rights and Freedoms; only after 2009, a legally binding Charter of Fundamental Rights of the European Union
comes into existence.
23
Abortion in the USA, political freedom of the extremist political parties in Germany, the Quebec sovereignty
movement in Canada might be some good examples for these new challenges to the Constitutionalism.
24
Unfortunately, some Chinese constitutional scholars have been promoting this idealistic plan. For instance, Prof.
part rather than the almighty of the society. In modern secular state, the government
possesses no moral commanding height of the society. All the constitutional
prescriptions with potential moral dimension tend to be written in a highly abstract
phraseology which leaves much interpretation room for the different social
communities.
In contrast to the constitutional values, the social values are mainly related to
such transcendent issues like the religious belief or final purpose of the material life.
In controlling the government without the moral supremacy, modern constitutions
tend to avoid touching these transcendent issues, and those well-established
constitutional principles like freedom of thoughts, religious tolerance are good
examples for this self-restraints of the constitution. Behind all these principles are the
constitutional neutrality and its pluralistic attitude towards the social life. Only with a
non-control and protection of the diverse interpretations to the moral issues from the
constitution is the constitution able to gain the respect and treasure of the people. sss
Concerning the Chinese constitution, the word “morality” (道德) appears only
once in the text of the Chinese Constitution, where Art. 24 defines the state’s task to
promote the construction of “a socialist society with an advanced culture and
ideology.”25 But until now no formal law promoting “socialist culture” has come into
existence. All the promotion measures remain in the political documents of the
Communist Party of China, which means that they are limited in the political arena.
This phenomenon might be read as the self-restraints of the Chinese Constitution on
the moral issues as well, at least in its implementation.
From a different angle, if someone insists the constitution to act as the value
foundations of the society or even to be the spirit of the nation, facing the increasing
diversity of the social values in modern era, it demands the substantialization of the
constitutional values and consequent establishment of the orthodox interpretation of
the values which need to be implemented by constitution and law from top to bottom.
This emergence of a “constitutional religion” would contradict to all classic principles
of constitutionalism protecting the spiritual freedom and be a reactionary move in the
constitutional history. Even when we pretend to be blind to the theoretical
contradiction, taking the lack of religious tradition of the Chinese people into
Li Binghui and Zhou Yezhong say: “therefore, besides the political propaganda, we should find another consensus
which would be accepted widely and take advantage of it as the spiritual foundation for the social value, in order to
obtain general observance of population of the whole nation. We believe that this consensus should be the
constitution.” Li Binghui, Zhou Yezhong : “On the Construction of Socialist Core Value System about China’s
Constitution”, Legal Forum No. 4, 2012, p. 52. Prof. Han Dayuan also defines “the social consensus of the
constitutional law is the consensus which exists in a social community, and, under the preconditions of protecting
the individuality and free will of the social members, guarantees a common value consensus or basic social and
value consensus. The purpose to achieve this consensus is a better recognition and protection of the diversity of the
individuals.” Han Dayuan: “Constitution and social consensus: from the rule of the constitution to the governance
of the constitution”, SJTU Law Review No. 1, 2012, p. 8.
25
Article 24 “The State strengthens the building of a socialist society with an advanced culture and ideology by
promoting education in high ideals, moralities, general knowledge, discipline and the legal system, and by
promoting the formulation and observance of rules of conduct and common pledges by various sections of the
people in urban and rural areas.
The State advocates the civic virtues of love of the motherland, of the people, of labour, of science and of
socialism. It conducts education among the people in patriotism and collectivism, in internationalism and
communism and in dialectical and historical materialism, to combat capitalist, feudal and other decadent ideas.”
The Constitution of China.
consideration, this substantialization of the constitutional values is accordingly also
unfeasible. Until 1980s under the leadership of Mao Zetong had the communist
regimes strove to establish of new culture with pure communist character but failed in
the chaos of the Cultural Revolution between 1966 and 1976. After that no leader
dares to reinitiate a general campaign for a “legal morality”, although sporadic
endeavors stay still, such as the internet censor under the name of promotion of
internet morality.
Hence, in the practices of the constitution, the most important consensus lies in
the power mechanism. In some circumstances there might be no consensus on the
textual prescription of the state power mechanism in the constitution, while in the
constitutional realities there might be another consensus on the running logic of the
political power. Albeit its potential unconstitutionality, the latter consensus would
sometimes contribute to the political stability of the county. Under the Chinese
context, as mentioned before, no consensus exists on the textual prescription of the
power mechanism, especially for those principles concerning the leadership of the
Communist Party, such as the separation of power, judicial independence and
multiparty system. The recognition of the real power mechanism in China and the
consensus on it has until now basically maintained the political stability in China. For
some people they would even tend to accept the constitutionally ambiguous practices
as the real constitution of the country, such as the leadership of the Communist Party
as the highest principle of the Constitution.26 This weird phenomenon might partly
prove the importance of the power mechanism to the implementation of constitution.
Generally speaking, it has been testified by the real experiences, that if there is a
consensus on the constitutional values, while lacking a consensus on the state power
mechanism, either on paper or in practices, this constitution could hardly be strictly
implemented, like what is taking place in China. On the other hand, even there is no
consensus on the constitutional values, or the consensus stays on a highly abstract
level, but when there is a sound consensus on the power mechanism both on paper
and in realities, this part of the constitution could still be good implemented.
The consociational democracy theory of Arend Lijphart might have a good
explanation to this possibility and phenomena.27 In certain European countries like
Switzerland, the Netherlands and Belgium, because of lingual, religious and cultural
factors there were or even still are serious social divisions. A mutual constitutional
value consensus or national spirit could hardly exist in these countries. But with a
constitutional power mechanism which efficiently and successfully protects the
autonomy of the respective social communities, the constitutions of these countries
are still strictly implemented and the political stability is good maintained. Even
facing the increasing distance between its Flemish and Walloon Communities and the
hollowing of the central government, Belgium is still moving peacefully towards a
end of two separate countries within the constitutional framework, in sharp contrast to
the political turmoil or even civil war in other countries with similar internal
26
“The leadership of the Communist Party of China over the Chinese People is the first basic rule of the
Constitution.” Chen Duanhong: “Constitution as the Basic Law and Supreme Law of the Country”, Peking
University Law Journal No. 4 2008, pp485-511, p. 494.
27
Arend Lijphart, “Consociational Democracy”, World Politics 21 (1969), pp207-225.
conflicts.28 The consociational democracy has also been practiced in other countries
and regions with serious social conflicts, sometimes successfully, such as the peace
agreement of the Northern Ireland.29
IV. The current Chinese Constitution should be the
starting point for the constitutional reform
The constitutional values and its power mechanism of the Chinese Constitutions
have only be limitedly realized or implemented in the practices, and the real political
power allocation mechanism is to some degree in contradiction to the textual
prescriptions of the Constitution. All these realities determine an unavoidable
constitutional reform. Like any other law, the constitution is not able to be
implemented and abode by automatically without supervision. But different to any
other law, the implementation of the constitution can’t depend on an enforcement
organ whose authority is independent of or even above the constitution, because this
powerful enforcement organ for the constitution is largely created by the constitution
itself. The contradiction concerning the power mechanism between the textual
prescription and the constitutional realities will no doubt weaken the authority of the
constitution. Interpretation of the constitution is only one of the factors which
promote the implementation of the constitution. Even if there does be a
comprehensive consensus on the interpretation of the constitutional text, when
contradiction between the textual prescriptions and realties emerges, it should not be
expected that the realities would drive itself automatically to the path set by the
constitutional text. When this contradiction happens, the historical original situation
will never be rebuilt again, unless people want to eliminate all the oppositions with
force. In order to eliminate or at least lessen this contradiction, the text or
interpretation of the text should also be adjusted.
But it doesn’t mean that in the development or even reform of the Chinese
constitutional system, the current Chinese Constitution could be thrown aside and the
reform could start fresh again. The current Chinese Constitution has been in force for
more than three decades, and a consensus on the constitutional values has also been
existing for a long time. As we’ve mentioned before, the diverse critiques against the
constitutionalism since last May are not targeting at the values of the constitution,
rather they are unsatisfied with the non-realization of these values. This consensus on
the constitutional values is an important integration force to collect support for
constitutional reform. If the current Chinese Constitution were thrown away, this solid
spiritual foundation would also be demolished.
Second, a “slow and steady” constitutional reform should not be building tower
on the sand; rather it should be a relative further continuous development of the
28
Cheng Mai: “Attain political stability in a divided society: comment on the Consociational Democracy Theory
of Arend Lijphart”, Global Law Review No. 2011, p110.
29
Donald L. Horowitz: “Explaining the Northern Ireland Agreement: The Sources of an Unlikely Constitutional
Consensus”, British Journal of Political Science, No. 2002, pp. 193-220.
established constitutional institutions. Thanks to the history of the current Chinese
Constitution for more than three decades, certain power mechanism prescribed in the
Constitution do have been partly implemented in realities and well known to people,
which could serve as a good reference for further constitutional reform.30 As we’ve
mentioned before, those viewpoints against constitutionalism cast many doubts on the
multiparty system in constitutionalism. Actually as early as 1987 the Communist
Party itself had brought forward the proposition: “to promote people’s democracy
through inner-party democracy.” 31 In the last decade, the democratization,
institutionalization and transparency level of the inner party organization have been
accordingly increased. 32 In the election of the National Congress and Central
Committee of the Communist Party, the margins have been increasing. The
rationalization level of the inner-party activities has also been advancing, and formal
regulations have been enacted concerning all such aspects of the inner-party life as
party discipline, selection for party leader position and report of property situation etc.
In 2013 even a regulation on the enactment of the inner-party regulations has been
passed.33 Some primary party organizations are experiencing direct elections of the
local party leaders.34 Judging from all these measures, however, one would finally
find that all these measures promoting inner-party democracy have never gone beyond
the structural design of the Constitution. The running of expected program to promote
the people’s democracy through the inner-party democracy is in fact the very reverse,
and the Communist Party is actually learning democracy for the Constitution,
different levels of the Party Committees are learning from the formal state organs like
the people’s congresses or even administrations. The people’s democracy which is
laid out in the Chinese Constitution is promoting the inner-party democracy.35 As a
matter of fact, in the first decade of the People’s Republic, members of the first
generation of the Communist Party leaders had already discussed the possibility of
learning from the Chinese Constitution to promote inner-party democracy.36 When
30
Prof. Sun Xiaoxia suggests that in the text of the Chinese Constitution there are already a constitutional
framework with nine aspects which could become a foundation for system consensus, such as the people’s
congress system and the election system. Prof. Sun further points out that a constitutionalist consensus in China
has already come into existence. The key problem right now is how to transform these constitutional institutions in
the text of the Constitution which have already enjoyed consensus into real constitutional order which comes from
the implementation of the constitution. Sun Xiaoxia : “Consensus on Constitutionalism and its Possibility”,
Chinese Journal of Law No. 2 ,2013, pp. 26-29.
31
“It is a pragmatic and efficient way to advance the socialist democratic politics, to promote people’s democracy
gradually through inner party democracy.” Zhao Ziyang : “Report to the 13 th National Congress of the Communist
Party of China” Oct. 25, 1987.
32
“The CCP elects the delegates of the national congress with greater margin”,
http://cpc.people.com.cn/GB/64093/64100/6070325.html, 2014-03-03 last visited.
33
Regulation on the Enactment of the inner-party Regulation of the Communist Party of China .Other regulations
on the inner party organization could be found in: http://cpc.people.com.cn/GB/64162/71380/182420/index.html,
2014-02-13 last visited, which range from the report of the property, political education, to discipline supervision
etc.
34
Democratic politics program team of the second youth class of the Party School of the Central Committee of the
C.P.C., “Public recommendation, direction election system and its improvement”, Journal of the Party School of
the Central Committee of the C.P.C., No. 5, 2010, p 69.
35
Jin Anping, “ ‘Inner party democracy’ and ‘democracy of the party’: consideration of the mechanism of the
demonstration and drive effect to the people’s democracy”, Social Science Research, No. 1, 2009, p. 11.
36
In 1956, Mao Zedong put forward: “Is it possible, like the operation of the people’s congress, to elect standing
members of the Party? We have a congress of the people, we also have a congress of the Party, and the congress of
the party is just the representative assembly of the Party.” Collected Works of Mao Zedong Vol. 7, People’s Press
1999, p. 54. In his report to the Eighth National Congress of the Communist Party of China for the Amendment of
the Communist Party itself is learning from the current Chinese Constitution on how
to promote institutional construction, it is definitely easier to start from current
Constitution to reform the power mechanism and to achieve the needed consensus.
V. Conclusion: Whose Consensus? When comes the
Consensus?
The term constitutional consensus is not only ambiguous in connotaton, but also
incomplete in form. The term points out the object of the consensus, but doesn’t make
clear the possessor of the consensus. So far we have deliberately avoided discussion
on this incompleteness, but now as a conclusion, we should deal with it directly.
The implementation of the constitution is the ultimate way to maintain the
authority of the constitution. The power mechanism is the key to transform the
constitution on paper into constitution in realities. This mechanism itself is a highly
practical constitutional component; hence in determining the design of the power
mechanism a pure theoretical exploration could hardly substitute for the real concrete
experiences. Since the consensus on the practices is just a description of the real
practices, the consensus on practices is almost identical with the real practices, even
result of rather than preconditions of the practices. In the discussion of the
constitutional values, we might retreat repeatedly to a more abstract level to
apparently reach a highly empty “constitutional consensus on values” which could
play little direct role in deciding the disputes in realities. The acquirement of the
consensus on practices is by contrast a continuous substantialization process with the
connotation of the consensus being increasingly well-rounded, and this consensus
forming process is much harder than the process to achieve an abstract value
consensus.
As a result, in the implementation of the constitution, if one expects to achieve a
consensus which would be accepted by all parties participating in the design and
operation of the constitutional structure through theoretical debate and then
accordingly to implement this consensus to establish a constitutional structure
including the power mechanism whose purpose is to fulfill all the constitutional
values, he would fail himself in endless theoretical quarrels. In this long march from
the theoretical start point to the end of real practices, a thousand practicers might have
a thousand different expectations. The practical difficulties can only be solved in
practices, and the consensus on the reform itself would be one of the consequences of
the reform rather than a premise for the reform. This consensus is far from a Bible for
governing which is waiting for discovery and enforcement.37
the Constitution of the Communist Party of China, De Xiaoping had also said: “ (to) advance the democratic level
of the inner-party life to a higher standard, the Central Committee of the Party has introduced a fundamental
reform in the draft of the Party Constitution which would give the party congress at the national, provincial and
municipal level a permanent status, more or less like the People’s Congress of diverse levels.” Selected Works of
De Xiaoping Vol. 1, People’s Congress 1994, p. 233.
37
This paper shares the logic of Huntington’s conclusion on the relationship between the institutions and power.
Huntington believes that power is far from something thrown on the floor of the parliamentary hall to be
A consensus on practices could only be reached after repeated experiences or
even failures. It requires people to start from a limited consensus to a broader one. For
instance, the current people’s congress system is not doubt of many problems both in
its institutional design and practices, but right now it is still the most capable
institutional channel in China to collect the wills of the population. If further reform
could strengthen and advance this system and encourage diverse social interests to
express their wills and to participate in the political process, a better political
equilibrium might be attained, which is also a better way to attain constitutional
consensus in practices.
contended for. On the contrary, the power should be created with social mobilization, development and
organization. The process to create power is also a process to establish a strong political system. Samuel P.
Huntington, Political Order in Changing Societies, New Haven and London:Yale University Press, p 144.