Rule of law in China

China’s new leader Xi Jinping gave a major address recently in which he pledged to curtail power and investigate violations of the law so as to protect the rights of Chinese citizens.

“No organization or individual has the special rights to overstep the constitution and law, any violation of the Constitution and the law must be investigated,” Xi said at a congress in the Great Hall of the People in Beijing to mark the 30th anniversary of the adoption of the constitution on Dec. 4, 1982.

The speech created the impression that Xi would take steps to protect rights which, while enshrined in the constitution, had not previously been observed.

One academic, Han Dayuan, dean of the law school at Renmin University, said Xi had sent a strong message and had emphasized the rights of the people, which had not been mentioned by his predecessor, Hu Jintao, at the 20th anniversary of the constitution in 2002.

In fact, Hu in his talk a decade ago did declare that the constitution provided a “reliable legal guarantee” for ordinary people to “fully enjoy their democratic rights.”

Nonetheless, there is little doubt that Xi’s speech stirred hope that there may be greater emphasis on constitutionalism and the rule of law in the coming years.

Thus, the relatively liberal Southern Weekly newspaper in Guangzhou prepared a New Year message urging greater respect for constitutional rights. However, that editorial never saw the light of day because the province’s propaganda authorities replaced it with their own version, which praised the rule of the Communist party.

The incident precipitated a rare strike by journalists and a call for the removal of Tuo Zhen, the province’s propaganda chief. The strike has ended and Tuo is still in place.

However, the cry for constitutional government has not been stilled. After all, Article 35 of the Constitution stipulates: “Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of association, of procession and of demonstration.”

These are constitutionally guaranteed rights that, generally speaking, do not exist in practice.

In fact, the constitution is a rather pretty document that serves a primarily ornamental purpose. In the Chinese system, the constitution itself is not justifiable ― that is to say, constitutional rights don’t legally exist unless legislation is first enacted by the National People’s Congress to protect those rights.

Without a relevant statute, a right provided for in the constitution exists only on paper.

In theory, the constitution is the supreme legal authority and no laws or regulations may contravene its provisions.

However, laws and regulations are recognized by the police and by the courts ― even when they go against the clear wording of the constitution ― whereas the constitution has no legal standing.

Certainly, in the case of the recent Southern Weekly incident, it seems that the propaganda authorities can override the constitution’s protection for a free press without any adverse consequences.

In the United States, it would be possible for a citizen to take a government organ to court for allegedly violating the constitution. In China, courts have no right to interpret the constitution. Only the National People’s Congress has this right and, judging by its record, it simply doesn’t bother to ensure that laws are consistent with the constitution.

For example, in 2004, the NPC added a sentence to the constitution: “The State respects and preserves human rights.”

The Shanghai legal scholar Tong Zhiwei has pointed out that such constitutional amendments routinely “have immediate effect after their promulgation,” with little thought being given as to how to enforce the new provision and with no attempt to review existing laws and regulations to see if they are consistent with the new constitutional safeguard.

In the case of the human rights amendment, for example, there apparently was no discussion as to how the new provision would affect the one-child policy, or the re-education through labor system or, indeed, any laws and regulations promulgated by the central or provincial governments.

The new sentence was simply added, it seems, so that China can boast at United Nations hearings that human rights are protected by the constitution.

It is this seeming nonchalance that adds to the general perception that the constitution is irrelevant to everyday life.

If the Communist Party and the government that it leads are serious about curbing official abuses of power and protecting the constitutional rights of Chinese citizens, it will have to do more than deliver a speech every 10 years on the importance of the constitution.

Frank Ching is a journalist and commentator based in Hong Kong. Email the writer at frank.ching@gmail.com. Follow him on Twitter: @FrankChing1. <The Korea Times/Frank Ching>