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China's Constitution Day: Rule Of Law Is No Open And Shut Case

24/12/2014 8:11 AM IST | Updated 15/07/2016 8:24 AM IST
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Chinese students, supporters of Chinese Prime Minister Li Keqiang, one holding a puppet depicting a dragon, wave their national flags as they gather at a counter-demonstration against a protest against the leader across the street from Downing Street in central London, where he was meeting with British Prime Minister David Cameron at his official residence, Tuesday, June 17, 2014. The Chinese leader met with Cameron and other senior government officials, and the two sides are expected to announce a slew of trade and investment deals. (AP Photo/Lefteris Pitarakis)

On 4th of December 2014, China celebrated its first Constitution Day. Unlike India, where the Republic Day is a day of celebration of adoption of the Constitution and reiteration of the national commitment to the principles therein, China's Constitutional Day was celebrated in order to encourage the ordinary Chinese citizens to learn about and comprehend how constitution can help them understand and guarantee their rights and duties, and find out and report wherever there is an exploitation of their rights. On that day, all elected and appointed public officials in China also took oath of their allegiance to the country's constitution.

China's desire to put its constitution at the center of its national affairs, 32 years after it was adopted, comes from the leadership's desire to establish rule of law in China. Nominally the Constitution is the supreme law inside China. However, officials of the Communist Party retain the right to interpret the constitution. In addition, its supremacy is hampered also by the fact that the judiciary remains under the party and not under the constitution. Therefore, there is no real independent judicial review or constitutional activism; what China is trying to do here is to gain constitutional and mass legitimacy for the rule of law debate that was initiated at the fourth plenum of October 2014. However, the scope of implementation of rule of law is limited since the party will retain its leadership in establishing a "socialist rule of law with Chinese characteristics". This means that the classic separation of power is not likely to occur since judiciary will always be dependent on the party for appointments and promotions, despite the promises made during the fourth plenum.

On the other hand, if China under Xi was indeed serious about establishing constitutional supremacy based rule of law then it would have not arrested as many rights activists as it did in the last two years, it would have handled Hong Kong's Occupy Central protests differently, it would not have curbed the environmental NGOs' scope of activism and it would have taken a more humane view about the now jailed Professor Ilham Tohti. It is also interesting to note that there would have been fewer suicides among China's public officials since the beginning of the anti-corruption if there were indeed a scope for the rule of law. It is the fear of China's secret jails that is driving the corrupt officials to suicides, leaving behind destroyed families as well as incomplete trails of corruption investigations.

The Chinese leaders' desire to establish the rule of law and communicate it to the masses is an effort to show that the leadership is alert to the fact of rampant corruption and growing gulf between the party and the masses at large. China's highest leaders, including the last president Hu Jintao and premier Wen Jiabao, had on numerous occasions warned of this void due to exploitation of powers by party officials. There is a general perception that now condemned leaders like Bo Xilai, Zhou Yongkang and Chinese PLA's Lt Gen Yang Jinshan are only tip of the iceberg of corruption in China. Therefore, whether or not China succeeds in establishing rule of law will depend to a large extent on whether it walks the talk of constitutionalism and bringing the party under its purview. President Xi's ability to ensure a smooth transition to rule of law will depend on how fast he is able to absorb resistance while at the same time ensuring economic growth. Even then, China is unlikely to see a genuine rule of law; at most the Communist party will function and rule by law.