To “firmly uphold the authority of the Constitution and the law” was stipulated by the Fourth plenary Session of the 18th Central Committee as a fundamental institutional principle. However, the significance of this stipulation was not fully understood. It at least means that all the civil servants should hold the constitution as the highest code of conduct, instead of the orders from their superiors. Apparently, the mentality of the whole civil services of China in terms of a “constitutional awareness” is not enough.
The lack of constitutional awareness is systematic for Chinese government officials
Some words and deeds during the plenary session by the government officials have revealed their attitude towards the rule of constitution and shown that they certainly lack the awareness and basic understanding of the constitution. For instance, Mr. LI Shixiang, the Deputy Mayor of Beijing, said: “Beijing will never cancel the limit for house purchases” when it came to the topic. His words were immediately countered by the amendment of the PRC Legislation Law. As an administrative department, Beijing municipal government has no right to reduce the rights of the people, even though it has the right to draft local regulations providing such regulations do not go against the constitution and higher-level laws. Mr. LI does not know that policies only are effective within a certain period of time, where “never” does not apply. Another example concerns Mr. GUO Shuqing, the governor of Shandong Province, who made a public promise that no Shandong citizens would ever join the shopping rush for milk powder in Hong Kong. Mr. GUO was an outstanding economist when he was working as my senior colleague in the graduate school at Chinese Academy of Social Sciences. To my disappointment, Mr. GUO confused the difference and boundary between public goods and private goods, and his power as governor within the area of public goods.
Another infamous political figure is Mr. QIU He who arguably knew little about the constitution when he said “thanks to the fact that China does not allow private ownership of land but only permit the limited right to use the land for 30, 50, or 70 years while 97% of the countries in the world adopt private property rights” when he tried to prove that the Chinese government was the most “incorrupt” one in the world. As the Deputy Secretary of the CPC committee in Yunnan Province, he was not aware that Article 10 of the Constitution stipulates ”land in the rural areas is collectively owned by the village collective.” What’s more, he was investigated for land-related corruption allegations before. He grabbed villagers’ land so vigorously, because he did not know that village collectives collectively owned rural land. He made huge profit for himself by expropriating land, because he used “nation-owned land” as a fig leave.
Such cases should not be deemed only accidental and individual. The lack of [Page]constitutional awareness for is systematic. Mr. WANG Ercheng, Deputy Director of Organizational Department of the CPC, talked about the issue of “qualification of the deputies of the National People’s Congress”, which was a confusion of his own position. Article 59 of the Constitution stipulates, “The National People’s Congress is composed of deputies elected from the provinces, autonomous regions, municipalities directly under the Central Government, and special administrative regions, as well as from the armed forces. All the minority nationalities are entitled to appropriate representation.” Article 7 of the Electoral Law of the PRC stipulates that “The standing committees of the people’s congresses of provinces, autonomous regions, municipalities directly under the Central Government, cities divided into districts, and autonomous prefectures shall direct the work of electing deputies to the people’s congresses at or below the county level in their administrative areas.” Even though the Organisational Department of the CPC is deeply involved in the election of government officials, it does not have the power as the hosting agency for elections. Apparently, it neglected the Constitution and the Electoral Law of the PRC.
A more serious problem is that almost every administrative department believes they have the legislative power. For example, the Ministry of Land and Resources believes it has the power to determine whether the houses of the rural citizens can be sold at their will; the Ministry of Housing and Urban-Rural Development believes it can set and cancel the limit to the purchase and sales of residential houses, the National Health and Family Planning Commission believes it can decide whether Chinese couples can have a second child, the State Administration of Taxation believes it can set the property tax, the Ministry of Education believes it can decide what’s to be taught at universities, etc.. In fact, all these administrative departments have meddled with citizens’ basic rights, and the power they think they have belongs to the legislative bodies. What they have missed is that they are merely executive bodies promulgated by the Constitution with limited powers to execute the law, and making regulations on the premise that such regulations are coherent with the higher level laws and the constitution and with due procedures instead of making the law. Their current activities are violation of the constitution.
It is quite common, therefore, that Chinese civil servants know little about the constitution.
The Party and the Government Lacks Constitutional Awareness, which Leads to the “Loyalty to the superior, instead of the Constitution”
The reasons may vary, but firstly, it is because within the party and government system in China, there is barely any education on constitutionalism. The recruitment examination for civil servants cares little about the Constitution. Sometimes, the only question in this concern refers to the highest law [Page]in China. The examination concerns more technical knowledge, and the examination itself is just like a high school competition. To many people’s surprise, there has been a rising tide against constitutionalism in recent years. Due to the narrow and distorted understanding of the constitution, many people have grown a fear for constitutionalism. The newspapers do not dare to publish anything that has the word “constitutionalism”, and publishers do not produce books that concern constitutionalism, which explains partially why civil servants do not read any literature on constitutionalism and nurture such a concept by themselves.
In fact, there are still over 1.8 million search entries on the Chinese search engine Baidu for constitutionalism, and over 54,3000 entries for book searches on Google. The Chinese character “Xian” (“宪”, meaning constitution) is a rather old character, and there are over 100 phrases starting with “Xian”, such as “Xian Gang” (“宪纲”, the outline of the constitution), ”Xian Ze” (“宪则”, the principles of the constitution), “Xian Zhi” (“宪制”, the institution of the constitution), and so on. Forbidding “constitutionalism” and making “constitution” a sensitive word means to cut Mainland China from the culture and thoughts relating to constitution, which in turn promises the lack of cultural influences. During MAO Zedong’s times, the criticism of Einstein led to the suppression of the knowledge of the relativity theory; and forbidding western economics led to the absence of an understanding of the market economy for Chinese people.
The result of such measures is clearly harmful.
The sole reason for the anti-constitutionalists is that constitutional reforms may “overthrow the CPC’s leadership”, which is obviously false. The key to the problem concerns the definition of a political party. Are we talking about the power in some people’s hands, or a set of rules? As we know, a political party consists of people who share the same political agenda, therefore, the set of constitutional consensus is called the “party program”. Without this constitutional consensus, power means nothing but the violence that requires everyone’s submission. Man is more constrained compared to power. Men become nothing but some symbols within a set of rules and power allocations. Besides, if these people are allowed to decide the rules according to their personal interests, it can be foreseen that the system will be rather volatile, and the interest of other groups in the society will be harmed every now and then. If the political party is to play a positive role as the leader, power should not be the only thing that’s needed. The political party should also come to consensus with the people in order to form a society that can be led by the party. Therefore, constitutionalism is also the foundation for party politics.
Those rules that are only beneficial to some cannot become universal rules. Therefore, such rules will be challenged. And if rules are universally applied that may get in someone[Page]’s way, the rules are still held higher than individuals. Hence, the principles that uphold justice are the premise for a political party to exist for long. After the Cultural Revolution, the CPC realised that “class struggles” were not the principles to sustain power but rather something to persecute people and overthrow the party. Then the CPC shifted the basic rules to those beneficial to the economic development, i.e., the welfare of the people. And this set of rules that upholds justice is the basis for the party to sustain, which demonstrates Constitutionalism. In the real life case in China, this set of justice-upholding rules is the Constitution. And the basic requirement for constitutional reforms is the implementation of the Constitution.
The second major reason for the lack of constitutional awareness for Chinese government officials is that there is no self-correction mechanism. In the case of Mr. QIU He, along with many other sacked government officials for allegation of corruption, such as Mr. JI Jianye, there is no constitutional protection for the collective ownership of the rural land where low compensations are made by the local government to expropriate the rural land. Mr. QIU He’s career was mainly attributed to his efforts in the urban development, while Mr. JI Jianye was nicknamed “Bulldozer Mayor”. However, they were never prosecuted for the violation of the constitution. Mr. QIU He and Mr. JI Jianye were not sacked because of their violation of the constitution, but because of their corruption in land-related cases. It can be summoned that they are not likely to reflect on their breach of the constitution even behind bars.
Another commonly seen behavior is the violation of Article 35 of the Constitution. As we often see, an executive officer, a county level director in some cases, can even mobilize government violence in order to suppress criticism from the people. For instance, when Mr. BO Xilai, the former governor of Chongqing, was in office, he sent many who criticized him to penal farms. Another rather common phenomenon is arresting journalists. Some journalists were arrested for their disclosure of the local government misbehavior. For instance, Ms. ZHU Wenna from Faren Magazine was arrested, Mr. CHEN Yangzhou from New Express Newspaper, Ms. LI Min from CCTV, Mr. XIE Chaoping from Shaanxi Province, and Mr. ZHU Ruifeng from Renmin Jiandu network, were arrested for their disclosure of the local government issues. Even though misinformation may take place in the exposes of these journalists, due procedures should have been taken to deal with them. Those local governments have violated Article 35 of the Constitution because there have never been effective measures to contain their behaviors, which makes the Constitution nothing more than a stack of paper.
When the constitutional principle for justice cannot be implemented throughout the system, then the directors of various administrative levels are able to put their wills upon the behaviors of their departments, including the rules for t[Page]he appointment and selection of government officials. This way, a set of rules and conduct codes are passed without review, as there’s no independent department to review the mechanism. As power overtakes the constitutional rules, the selection and appointment of civil servants becomes a game where only those who are close to power benefit. For example, XU Caihou, the former People’s Liberation Army (PLA) general, accumulated billions, a big proportion of which came from selling government positions. And there was no review mechanism to counter his deeds. Apparently those who bought their way up had to serve for XU’s interest. Another example is ZHOU Yongkang, the former security chief, who managed to establish a wide network of his home-boys. Word has it that ZHOU obtained over RMB 100 billion. It is impossible for him to obtain so much wealth without the help some mega companies, nor can he do this so smoothly that nobody knew. However, till the day of his fall, we have never heard of anyone who was involved in his case.
What’s more, when LIU Tienan, former Chinese politician and senior economic official, was reported by a real name whistleblower, some executives from the press office of the National Development and Reform Commission denounced it as “pure rumors and slanders”, and threatened that they would contact the network authorities and the police to deal with this report. LIU’s subordinates apparently did not know whether the report of their superior was true of false when they put the authority of the NDRC on jeopardy in order to “defend” their boss. In retrospection, the press office of the municipal government of Chongqing did just the same when it announced that WANG Lijun was taking a “vacation-style treatment”. The press office acted like it was a tool of BO Xilai as it assisted him in creating multiple false criminal cases during the time of “singing the Red Army songs, and cracking down the criminals”. The whole municipal government of Chongqing acted like BO Xilai’s personal clan.
We can, therefore, make reasonable assumptions that it is not an accidental case for those sacked government officials to emphasize their loyalty to their superiors during selection and appointment, but it is a rather common rule. This can be seen in the fact that the convictions of the sacked government officials were not prosecuted for “appointing only their own men”. Hence, the current selection and appointment system for government officials has enhanced the intention for people to attach themselves to their superiors. Generally speaking, it becomes more and more common for civil servants to put their boss before the principles of the Constitution. This also explains why some think it is impossible for the effect of executive orders to go beyond Zhongnanhai, the symbol of the highest authority. Many government officials only use the man they personally trust so that their own interest can be sustained. When the orders from Zhongnanhai go against their interest, manoeuvres take place and punishment is rarely seen. The fact that many civil servants do not have the basic understanding of the Constitution showcased their lack of responsibility for the long-term interest of the country. This whole system is, therefore, in a very unstable status without consistent rules as those subordinates have their own subordinates. Loyalty, therefore, is only about the immediate bosses.
The “Banality of Evil” results from the personal attachment in China’s civil service system
Since there is an inclination for civil servants to submit to their superiors, which led to the fact that they only listen to their bosses, it becomes impossible for criticisms based on constitutional principles to exist in various government departments. As criticism and public supervision are suppressed by the government, a total violation of Article 35 of the Constitution, the discourse within the system remains still and coherent. Accordingly, when Mr. QIU He visited Dianchi, he instructed that a piece of land should be developed into a lawn. However, that piece of land has been sold to a private company, and the land certificate was issued. Mr. QIU inquired a municipal official and the answer he got was “Everything you say, Sir.” Similar examples are countless. As some government officials hold little respect for the Constitution, their respect for the laws is infinitesimal as the Constitution instructs people to obey the laws. I would like to believe there are still people in the government who maintain their integrity and help the government with critiques, but I also believe such people are outnumbered and their criticisms are not substantial.
There is also a strong inertia for suppression of those who criticize the government besides the emphasis for unconditioned submission. In the early 1950s, LIU Shaoqi, former chairman of China, advocated the propaganda of “the docile tools”. And the anti-rightist movement of 1957 was a crackdown of intellectuals. The persecution of PENG Dehuai, and the overhaul of senior government officials including LIU Shaoqi, was due to the criticisms against MAO Zedong’s mistake that led to the Great Famine. LIU Shaoqi was expelled from the party on his birthday, and he was strapped in bed during the last 60 days before his death. To use public violence against criticisms has become a Chinese tradition. At present, this is demonstrated by the removal of online criticisms of political power. Ironically, this rule also shows who have lost their political power.
In the meantime, the suppression of criticism is the encouragement for adulation. We can sense the trend of adulation from the fact that many government officials made false statement in public as their subordinates knew but they did not dare to point out. For example, the silk banner given by the Forbidden City Museum to the police for their efforts in finding back the stolen items was an embarrassment as there was a false Chinese character on it. It was an obvious mistake, but no one dared, or cared to point it out. Certain procedures must haven been taken as the silk banner was a big deal. We can only imagine that after the directors of the museum approved the content of the silk banner, no staff had the courage to point out the fault. [Page]“The boss is always right”, has become an unclaimed rule in the party and government system of China. Once the senior officials have expressed their views, even if they are against the law and the constitution, these views get a good chance to become laws for the subordinates. However, it is nothing but a game of “play dumb” by the subordinates.
As a civil servant, there seem to be too many reasons to “put the bosses before the Constitution”. It is impossible to fight the institution and the traditions all by oneself. Many would give in and believe it is not a big deal. However, it reminds me of Hannah Arendt’s concept of the “banality of evil”. This concept was created when Arendt referred to Adolf Eichmann’s deportment in the Jerusalem trial. Eichmann defended himself by “executing the order from his superiors”. This induces a philosophical issue, that is, whether a man should be held accountable for his crime when he was instructed to execute the order from his superiors. If the man is just conducting a small evil, it is still possible that multiple small evils may accumulate to a massive crime. Such crimes have resulted in the death of over 6 million Jewish people during the Second World War. (Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, Shanghai People’s Press, 2014)
Therefore, the “banality of evil” may be more horrifying as it has consumed thousands of lives without a slight sense of guilt. Arendt pointed out that the fact that every man was sinful meant no one was a criminal (p. 57). And the Nazis made use of people’s tolerance for small evil in order to conduct the Holocaust (p. 63). In retrospect, during MAO’s time, people were brainwashed to be a small “screw” for the party and “implement the order no matter whether you understand it or not”. This is a clear case of banality of evil, which led to the great famine of the 1959 resulting in the death of millions. Thanks to the banality of evil, MAO has successfully made a fool of Chinese people for decades. Nowadays, even when we try to hold MAO responsible, not a single person who “implemented the order” stands up and admits his or her responsibility. This shows how appalling the “banality of evil” is.
Arendt’s proposal was “to eradicate the word ‘submission’ from our morality and political thoughts” (p. 71). It is because “when we talk about submission of adults, we are actually talking about the organisation, authority, or law that require submission of the adults.” (p. 70) “Support” means “consent”. In a country of people’s sovereignty, theoretically all its laws, institutions, and leaders should have the consent of its people. And the constitution should be the very basic and sustainable institution that has the consent of the people when specific laws are not basic, and institutions and leaders are not sustainable. When certain leaders and superiors violate the constitution, they are no longer the objects[Page] of people’s consent, which means the people should turn to the constitution. Therefore, the right thing to do is to “transcend the superiors and resort to the Constitution”.
The Basis of “Rule of Constitution” should be “Transcending the superiors and resort to the Way of Heaven”
Some may say that the current Constitution of the PRC is also flawed, and mistakes may occur when people resort to the Constitution. Of course there are flaws in the Constitution as it is man-made. Besides, the current Constitution has not been drafted or amended in due procedures by public choice. However, the content of this Constitution is still the best so far in Chinese law system. It includes the protection of the freedom of citizen’s body, expression, religious beliefs, and property, though not completely implemented. When we talk about the constitution, we are not referring to a specific constitution edition, but rather the “way of heaven”(天道). So we should “transcend the superiors and resort to the way of heaven”.
From the perspective of an individual political party or leader, it is impossible to gain general political consent from the people. But a political leader should understand that the highest national recognition and political consent concern the recognition of the constitution. Only when a political party or leader upholds the constitution, shall it or he benefit from the recognition of the constitution. This requires more than words, but actions. We should know that the reason why the effect of executive orders barely makes it beyond Zhongnanhai is that the people inside determine so. They are the true causes. It is because the people inside Zhongnanhai neglect the Constitution that people outside of it see the Constitution in the same way. For instance, the merger of the China North Railways and the China South Railways did not take into account the Anti-Monopoly Law. The leaders neglected the laws and the Constitution to such extent. We cannot assign too much blame on those local government officials who throw journalists behind bars when Article 35 of the Constitution is commonly ignored and online criticisms are regularly removed and deleted by the order of the authorities.
Only by upholding the constitutionalism, can we really keep the whole system consistent and eradicate the personal attachment while breaking the anti-constitutionalist interest groups. To illustrate, the interests of different people may be conflicting, but the understanding of the constitutional principles are similar. The implication of cronyism twists these principles and the public power may be used to violate human rights and property rights, which in turn will weaken the credibility of the government authorities and result in low administrative efficiency. Without the appeal of the sense of justice by the recognition of the constitution, it is impossible to ensure the efficiency of administration only by violence of the power. When everybody, at least the civil servant[Page]s, insists in transcending the superiors and resorting to the way of the heaven, and when the ruling party and its leaders uphold the constitution and implement constitutionalism, it will be a reality for the effect of executive orders to go beyond Zhongnanhai and to have a country ruled by the constitution.
It seems to be difficult, but in fact it is not. Even ordinary people in old China were capable of doing so. For example, when a child misbehaves and defends himself by saying “it was XXX who told me to do so.” The mother would argue, “If you were asked to kill, would you do it?” This is a question for the integrity and self-esteem of oneself. There was caution in Chinese tradition against the “banality of evil”. There is the old saying “Do not do evil things though they may be insignificant. Do not give up good things though they may be minor matters.”
There were such traditions, as were there people who behaved this way. For example, when OUYANG Xiu, politician in Song Dynasty, was serving WANG Shu, then governor of Xijing, an army deserter was caught. According to the law, WANG Shu should sentence the deserter to death. And OUYANG Xiu was against the decision and argued that there got to be some reasons. He suggested the deserter be sent back to the army, yet WANG Shu disagreed. At last, OUYANG Xiu had the final word as he was in charge. (WANG Shuizhao, CUI Ming, A Biography of OUYANG Xiu, Tianjin People’s Press, 2013, p. 56) I believe it was because OUYANG Xiu had the courage to transcend his superiors, even his emperor, and resort to the way of heaven that he made the right decision. “It is the Jianguan (谏官, the government official who’s in charge of criticising and providing suggestions to the emperor) who argue with the emperor in the court. Even though the Jianguan is inferior in status, he acts what he says. By doing so, he conducts the way of the heaven.” (p. 66)
The Shiren (士人, scholars) spoke out in regard to the selection of government officials. For example, BAI Juyi spoke against the appointment of TUTU Chengcan as a general for three times. OUYANG Xiu also joined hands with other Jianguan to stop an appointment of XIA Song as military affairs commissioner. In Ming Dynasty, the Jianguan group criticised the emperor for appointment of personnel without due procedures. These government officials who were selected without due procedures were called “Chuanfengguan”. During Mingxianzong Emperor’s times, over 500 Chuanfengguan were sacked; 3500 Chuanfengguan were sacked in Mingxiaozong Emperor’s times; and over 300 Chuanfengguan were sacked in Mingshizong Emperor’s times. (ZHANG Wei, The Supervisory System of Ming Dynasty, Wuhan University Press, 1993, p. 137) That is because the Jianguan believed that “the government positions and titles are the instrument of the public”, which should not be traded for “personal interest”. (ZHANG Wei, 1993, p. 133)
Even in the darkest times of MAO Zedong when criticisms were heavily suppressed, there were still people who followed the way of the heaven. PENG Dehuai was a good example. Few people know about DENG Zihui. When MAO had the utmost power, DENG Zihui insisted that the program of people’s communes and the public canteens were wrong. In 1961, the dreadful outcome of the great famine began to show. DENG Zihui met MAO Zedong twice to request that the land and agricultural productivity should be sublet to households in order to deal with the declining living standard and tattering national economy. However, his suggestions were rejected by MAO Zedong. DENG Zihui was the first secretary of the party in Zhangjiakou. He took liberty and listened to the people and dismissed the public canteens against huge political pressure. He also wrote twice to MAO Zedong to restate his appeals only to be rejected. He was politically persecuted. There was a farmer named YANG Weiming who wrote an article entitled “Observation of the Current Situation” where he insisted the same. He, along with two others, was publicly humiliated and persecuted before they committed suicide.
It is with these people who put their lives for the way of heaven that the Chinese civilization can be proud to stand in the world. It is this spirit of “transcending the superiors and resorting to the way of heaven” that we have the basis for the “rule of the constitution”. A successful constitutional state is one that considers the awareness of constitutionalism as the basis. What was key to the Protestant Reformation was summarized by Martin Luther that every ploughboy should read and interpret the Bible by themselves instead of listening to the priests, because they were responsible to God for their soul. Therefore, every man of belief is a priest. During the colonization times in the US, “education was done mostly by reading the Bible and newspapers at home”. (John Eidsmoe, Christianity and the Constitution, Central Compilation & Translation Press, 2010, pp. 18-19). We have to admit that “resorting to God” constituted the basis for the success of American constitutionalism.
From the perspective of the ruling party and its leaders, as long as they base their political legitimacy on the constitution and the way of the heaven, they would not fear that every ordinary man understands the Constitution and the way of the heaven. And they will be more popular, because the Constitution covers the biggest constitutional consensus. Now with the principle of freedom of expression and the variety of the methods of expression, it will not be possible to “start from fooling the people, end with fooling the emperor” by closing the information flow and confusing the awareness of constitutionalism. The only people that can be fooled are themselves. When it comes to the “emperor”, from the political aesthetics perspective, even Louis XV said that “we are now ruling a free and generous people with glory and honor.” One of his ancestors put it in an even clearer way: “We’d rather speak to a free man than a slave.” [Page](Alexis de Tocqueville, The Old Regime and the Revolution, the Commercial Press, 1992, p. 154) Freedom means that people can resort to the way of the heaven by their free will.
April 29, 2015 at Fivewoods Studio
May 5, 2015 first published in FT Chinese and China-review Weekly