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Which is greater? Law or party?

HONG KONG (SE): Internet search engines do at least reveal the hot topics of the day and, if allowed to run free, give much information on current thinking among the populace.

But Peter Ford writes from Beijing in The Christian Science Monitor on May 24 that it does come as a bit of a surprise when the hot topic of the day turns out to be the national constitution.

Ford explains that the word constitutionalism has become a code in China for political reform and has evolved into a hot debate over whether the Chinese Community Party should be subject to the national constitution or not.

He says that it begs the question as to whether or not the Communist Party could survive and maintain its grip on power if, in fact, it obeyed the constitution.

What he generally describes as the conservative camp, those who argue in favour of the status quo, maintains a strong stand against constitutional rule.

Ford quotes Stephanie Balme, a professor of law at the Institut d’Etudes Politiques in Paris, France, as explaining it this way. “Behind the words lies the desire to transform government institutions and political life.”

She reflects, “It is the only way people can talk about politics.”

A bi-weekly publication of the Communist Party, Red Flag Magazine, wrote a theoretical article on May 22 claiming that constitutional government is not suitable for socialist countries.

Remin University professor, Yang Xiaoqing, argued, “It belongs to capitalism and bourgeois dictatorship.”

On May 23, the Global Times, a party tabloid, called constitutionalism a new way to force China to adopt western political systems. “Constitutionalism’s demands are deeply opposed to China’s current constitution,” it editorialised.

These arguments backtrack on a statement made in December last year by the head of the Communist Party, Xi Jinping. He described the constitution as the legal weapon for people to defend their own rights, calling it the underpinning of people’s rights and authority.

The state news agency, Xinhua, quoted him as saying shortly before he took over the presidency of China, “No organisation or individual should be put above the constitution or the law.”

Ford then quotes Zhang Qianfan, a constitutional law professor at Peking University, as saying, “They have decided to turn against constitutionalism and that signifies the premature end to political reform.”

However, Ford points out that other observers believe the discussion has a long way to run yet.

He quotes David Kelly, from China Policy, a consultancy in Beijing, as saying, “There is a massive groundswell of interest in the idea of a constitution limiting state power. And there are people at the top who see the writing on the wall.”

Legal people point out that China’s constitution is remarkably democratic, but has not been implemented since it was promulgated in 1982.

There are articles protecting people’s rights, freedom of speech and assembly, freedom of religion—all of which are regularly violated.

Zhang says that in his opinion, the bottom line of the argument is article five of the constitution which says that no organisation should be above the law.

Ren Zhiqiang called it a simple matter in his blog, saying, “It means putting power in a cage and giving the key to the people.”

But Yang counters in the Red Flag that the constitution sets the basic principle to uphold the Chinese Communist Party’s rule and so the party is above the constitution.

Speaking from a different point of view, Kelly agrees. “The Communist Party rests on the notion that nobody limits its power. When they say that nobody is above the law, they don’t mean the party core.”

However, Ford gives the last word to Keith Hand, a professor in Chinese law at the University of California in San Francisco.


“Everything is in flux. 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.”

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