Since the end of the last imperial Qing Dynasty in 1911, its successors, ROC and PRC have had no less than 14 draft and promulgated Constitution.
ROC
1. The Provisional Constitution of March 12, 1912
2. Yuan Shikai's Provisional Constitution of May 1, 1914
3. The Draft Consitution of the Anfu Parliament of August 12 ,1919
4. The Cao Kun Constitution of October 10, 1923
5. The Draft Constitution of Duan Qirui's regime of December 12, 1926
6. The Provisional Constitution for the Political Tutelage Period of 1931 of KMT
7. The Draft Constitution by the Legislative Yuan on March 1, 1934
8. The revised draft by the KMT's Central Executive Committee on May 5, 1936
9. The ROC's Constitution of December 25, 1946
PRC
10. The 1949 Common Program
11. The 1954 PRC's Constitution
12. The 1975 PRC's Constitution
13. The 1978 PRC's Constitution
14. The 1982 PRC's Constituion with major revisions in 1988, 1993, 1999 and 2004
The only occassion of a Chinese Constitutional Convention happened in 1949 when the CCP convened the first China Peoples' Political Consultative Conference that approved the 1949 Common Program, the de facto PRC's Constitution betwen 1949-1954.
The first CPPCC was very much dominated by the CCP and its purported legitimacy was conferred by delegates from various parties friendly to the CCP. There was no equivalent of American Federalist Papers published or adequate discussion to draft an enduring constitutional charter. No wonder, the first one lasted a mere 5 years.
Obviously China is not lack of Constitution, what she lacks of is the Constitutionalism and its enforcement.
The central question is whether another constitutional convention is able to address all the issues so central to the constitional governance of the present day China besieged with wide ranging issues from electoral legitimacy to the party-state polity, from separatism to autonomy, from conceptual freedom to freedom in practice.
If one were to look at the section on the fundamental rights and duties of citizen in the 1982 Constitution, it may well be enshrined in that of a liberal democracy.
The problem is the acute absence of a sound constitutional framework and mechanism in promoting and safeguarding it. This requires a new understanding of separation of powers and check and balance.
Separatism is based on the notion of the right of self determination. This is not a difficult concept to understand, the right of self determination is akin to the right of an individual's right to marry and this right doesn't belong to the family.
From this perspective, it is not difficult to fault the Chinese's claim of soverignty over a sub political constituent like Tibet or a political constituent that have existed outside the polity for almost 60 years.
First, the autonomy given to the ethinic minority region especially that of Tibet remains contentious and becomes frequently an international issue that discredit Chinese diplomacy in the western media and public. Second, the regional polity of Taiwan maybe regarded as "one state two governments" in the legal sense.
The present constitution in its unitary form is inadequate in addressing these issues. Further, the course of action pursued by the CCP is economic agenda with Taiwan and political dialougue with Dalai Lama's government in exile are very measured and gradual steps.
It is also in this sense that the Constitutional Convention can be bold and inclusive for a peaceful constitutional settlement. However, this can only take place with CCP making political accommodation of some sort for the ideal of One China and also its concern of legitimacy.
Using the metaphor of hosting a party, the party can only be fun if everyone at the party can have fun.
It has also been discussed elsewhere that the future of a democratic China depends very much on whether CCP accepts or accedes to political pluralism. The former is preferred as the latter may be a result of chaos and disorder.
Across the Taiwan Straits, KMT has demonstrated its willingness to adapt to the political pluralism and its ability to regain the power by ballot.
Both parties are Leninist in origin and suffice to say that the CCP is more organized and determined and therefore more successful to perpetuate the one party-state polity.
Will the CCP has a change of heart like the KMT?
No evidence is present to show that the CCP is happy to accede to a power sharing arrangement execpt for the accommodation of one country two systems in Hong Kong and Macao where its allies are in control. The CCP leadership has of late spoken to intra-party democracy. This rules out the possibility of political pluralism in near future.
This is compounded by the fact that as long as the CCP continues to cling to the adage that the political power is derived from the gun barrel, any peaceful change to the Chinese party-state polity is likely depends on the development of intra-party democracy within the CCP.
A critical pre-condition to a multi-party democracy in China will requires the CCP to cede its monopoly over the military and that the military has to be independent and answerable to the state and not the party.
The concession on military control and accommodation on political pluralism that the CCP are asked to make is very substantial but need not be disadvantageous to the party.
The CCP has had almost 60 years of ruling experience and a nation-wide party machinery, this constitute an incumbency advantage that allows itself time to rule for many years to come and to earn legitimacy via free and open electoral contest and relevancy via dynamic political policies for sustainable and comprehensive development. Outside the border, it helps earning China, Chinese and the CCP the international respect.
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1 comment:
Bro KY, I must congratulate you on your most impressive research on the various attempts to produce a constitution for China.
My first observation is that many of them managed to progress only to the draft form; which is not surprising because those were turbulent times when any notion of national consensus was hard to imagine.
The other observation is that the ones that were eventually promulgated took place after the emergence (but not part of the process) of a dominant political force in 1931-35, 1946 and 1949. It may be seen that constitutions in those cases were attempts by political victors to impose their rule. The sad testament is that those constitutions were paid in bloodshed and imposed by politics on the people rather than driven by higher ideals of national reconciliation or rejuvenation.
Arguably, the closest China came to a de-facto debate of its modern-nationhood was what took place between its intellectual nationalist youth elite during the fervent years during the warlord and early Republican years. Those were times of trouble and strife; and the thinkers were driven by nothng less than survival of the nation. Unfortunately, a national crisis of survival is often what it takes to have a consitutional convention.
But it does not mean China should not have a constitutional conveRSATION. Being the optimist that I am, I believe that positive forces are already at work in a gradual manner to bring about a modernisation of the PRC Constitution.
As pointed out, the Constitution has been subject to amendements - quite consistently every 5 years coinciding with terms of CCP Plenum/NPC. Most such changes can be attributed to keeping pace with changes in society that result in the formation of new governing consensus (besides enshrining personal ideas of the leadership).
China is fast modernising in its thinking on society and approach to governance. Many things that are de jure may no longer be de facto. (the reverse is also true with many constitutional provisions not being honoured); more importantly the trend of emerging social and political consensus leans towards the progressive. One sign of change driven by changing social consensus is how often the CCP acknowledges and pays lip service to liberal ideals and reforms only to be cautious about the transition/ implementation.
The Chinese people today is arguably freer, richer and more protected than ever in history. The paradox with China is that as it progresses, expectations also grows and in the midst of contemplating its imperfections it is easy to forget the progress being made. But I am sure
I am sure if the patroitic intellectuals of May 4th movement (or even June 4th) were alive today they would be astounded how much have been overcome.
Here I would like to make this prediction for the future path of China's transformation. One Country Two System will be adapted as a precedence for a many-tracked liberalization in China. Certain wealthier cities will progressively introduce political reforms - followed by provinces - and then across the nation.
This is not a new idea and Hong Kong may rightly sees its destiny to lead the way. I believe this is the right way to do it because the socio-economic chasm in China is so great that the best balance between individual and social imperatives differ from place to place. Ultimately, bottoms up liberalisation based on ripening social consensus is preferred to top down driven by political or itellectual considerations. In fact, this would also give political cover for dealing with seperatist sentiments because it would allow for more regionalised political structures to take root. Political reform is something that I'd prefer to get it right over 50 years than spending 50 years fixing an ongoing experiment going awry.
That lesson I believe is the lasting lessons from the liberalisation of KMT ruled Taiwan. The parallels between the KMT and the CCP is not surprising given they share the same roots. When Chiang Chinguo launched the island on the path of political reform beginning with the lifting martial law, redress the balance of LegYuan seats in favour of Taiwan constituencies, initiated direct LegYuan elections, local elections and finally presidential elections by universal sufferage; there wasn't any doubt that the social political consensus is ripe and ready. If he waited 10 more years it would be a revolt but he was astute enough to keep pace with the emerging consensus. The law was given the chance to challenge the powers of the KMT. The military in the end was a reflection of society and stayed away even in 2004's dodgy Presidential elections.
[I am on holiday in Brunei with intermittant access to the Internet, hence my responses may be slower than usual]
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