“China has a constitution, but not necessarily constitutionalism.”
An expert on the relationship between Chinese and American law, Harvard Research Fellow Mark Jia spoke about the law in China today and how America tries to interpret and respond to it. During his talk, he explained the concepts of “constitution” and “constitutionalism” and interpreted these concepts with related cases.
“A country exerts constitutionalism when it operates under the body of fundamental law that legitimate[s], structure[s] and constrain[s] the power.” Jia said. Using the U.S. constitution as an example, he emphasized how the U.S. Constitution constrained the U.S. government’s power while protecting the individual’s rights.
On the other hand, having a constitution does not automatically equate to constitutionalism. For example, Jia mentioned that, however clear and well-formulated its constitution is, North Korea still has a highly oppressive government. There is a substantial gap between the promise of the constitution and the anti-democratic reality. Authoritative governments use constitutions to advertise. These governments use billboards for policies, blueprints and goals — a window dressing to give the impression of having an enforced constitution. The constitution does not actually constrain the government, and the country cannot have a strong level of constitutionalism.
He also gave an example for strict enforcement of a constitution, or something that would contribute to a high level of constitutionalism. In 1990, there were two classmates, Chen Xiaoqi and Xi Yulin, both preparing for their college entrance exams. Later, Chen stole Xi’s scores as well as her identity, thus entering into a prestigious college and obtaining a high-paying job at a bank. Xi, on the other hand, failed to receive her score and had no choice but to receive professional training. She went to a factory and then was laid off. After discovering Chen’s crime, Xi sued Chen at the local court. She claimed the civil rights to her identity, requiring compensation and claimed her constitutional rights to education.
Xi’s first claim was approved, but the latter was not. She continued to sue until she reached Supreme Court. In response, the Supreme Court decided that, “ by infringing Xi Yulin’s right by using her name, Chen Xiaoqi et al. violated Xi’s fundamental rights of education and therefore caused actual damage. Therefore, Chen Xiaoqi should bear corresponding civil liability.”
Jia said it was “quite a big deal” at the time. It was almost the equivalent to the U.S. Supreme Court case establishing judicial review.
Unfortunately, quickly realizing what constitutional review could lead to, the Chinese government began to manage expectations. Later, judge and vice president of the Supreme Court Huang Songyou was sentenced to prison for corruption. This was likely because the People’s Republic of China saw his judicial activism as problematic.
While China does not have a very high level of constitutionalism, advocates, lawyers and policy makers do still cite the constitution. They do so not so much as legally binding law but rather as a form of rhetoric or precedent. In fact, the Chinese government also uses it as such. Interpretations of the constitution are particularly strong during times of scandals and transitions.
Despite the harsh reality, many individuals are still devoted to reforming the constitution. As such, I believe we still have the reason to believe that Chinese constitution may become more enforced in the future.
