Will China Enforce its Constitution?

By Janeil Bamberg

China’s supreme legal document is its national constitution, a document that offers many liberal provisions for governance that have often not been enforced. This reality may change with China’s recent leadership transition. 

Last November, the international community watched as Xi Jinping became the top-ranked leader of the Chinese Communist Party. Xi appears to favor the enforcement of China’s constitution, at least more than his predecessor, Hu Jintao. Influential Chinese intellectuals and publications have recently called for enforcing constitutionalism, as Xi’s recent speeches have implied his potential openness to this step. He has recognized publicly that implementation is necessary to give the document proper “life and authority” and that the constitution “should be the legal weapon for people to defend their own rights.”  

As with the constitutions of many Western countries, China’s enshrines the rights of the individual and encompasses civil, legal and political rights including: the full powers of representative legislature; right to ownership of private property; freedom of speech, press and assembly; the right to work; as well as family and retirement protections. The document was ratified by the National People’s Congress in 1982, but, as The New York Times puts it, “it has languished ever since.” 

Issues surrounding constitutionalism and censorship recently touched off a fierce public protest in China, when an article in Southern Weekend in Guangzhou was censored when it called for greater respect of the rights outlined in the constitution. Some Southern Weekend staff declared a strike and supporters gathered outside their offices to protest the censorship. 

At the end of this past year, 73 Chinese intellectuals signed a petition urging action on a number of civil issues, including constitutionalism. Zhang Qianfan, a law professor who helped to create the petition, said that “the previous reform was preoccupied with economic aspects. But we learned from the experiences of the recent two decades that economic reform can go wrong if it’s not coupled with political reform, or constitutional reform actually.”

Those watching China from outside, such as Cheng Li of the Brookings Institution, note that legal professionals and intellectuals received Xi Jinping’s speech on the 30thanniversary of the constitution with much enthusiasm. In this speech Xi referenced the ultimate authority of the constitution and its crucial role in guiding the rule of law in China. Li believes that, though Xi and the latest Politburo Standing Committee, the most powerful leadership body in China, are largely politically conservative, “Xi and his team—whether by choice or by necessity—may still pursue some degree of political change.”

What does this mean for the China’s future? Some significant steps towards reform have already been taken, such as recent action on the country’s controversial forced labor camps(laogai). Li holds that China’s needed political reforms include “intra-Party democracy, local elections, the rule of law (especially judicial independence), media supervision and openness, government accountability and transparency, and the role of civil society.” The Chinese Constitution as it is currently written provides guidelines in many of these areas. If properly enforced, this document could send a strong message and reassurance to Chinese citizens about the government’s willingness to respect, protect and fulfill their rights.

Jeneil Bamberg is an intern at the EastWest Institute’s New York Center.