1.Introduction
While modern Western constitutionalism is often characterized by its emphasis on an individual’s rights, constitutionalism has been practiced since well before the modern era and its concerns for human rights. It is both the practice of politics and the theory of that practice that is at the center of constitutionalism. Seen in this light, China’s political elite was grappling with constitutional questions well before the late-Qing reform era. Among the questions discussed in nineteenth-century reformist thought were three of particular importance: How does the individual speak truth to power? How can the political energies of educated men outside government be used for the common good? And how can a country with an enormous population, a complex economy, and pressing social concerns be administered effectively by a relatively small group of provincial and local officials? Such questions were raised by nineteenth-century statecraft scholars such as Wei Yuan and Feng Guifen. Feng Guifen’s radical proposals, based in part on his understanding of the West, were discussed by high government officials in the 1890s and anticipated the constitutional reforms promulgated by the Qing government in the post-Boxer era.
When assessing Chinese constitutionalism in the modern era, then, it is important to remember that many of the questions and answers associated with imported ideas were not necessarily new to China’s political elite.
While a Western-influenced concern about the individual and rights would become an element of modern Chinese constitutionalism, fundamental constitutional concerns about how public and political life should be ordered had been present in China long before the impact of the West.
2.Constitutionalism in the late Qing
Modern constitutionalism in China is often associated with the late-Qing reform era, beginning in 1895 with Kang Youwei’s “ten-thousand-word” petition that called for elected representatives to serve in Beijing where they would critique imperial actions and speak for the people. Kang’s 1895 plea echoed the first article of Japan’s 1868 Charter Oath, a hallmark of the Meiji era (1868–1912), which reads: “An assembly widely convoked shall be established and all matters of state shall be decided by public discussion.”
China followed this progressive Western-influenced Japanese constitutional model in the crisis atmosphere of the post-Boxer era.
In 1905 Qing government officials viewed from the sidelines the spectacle of Japan and Russia, which had occupied parts of Manchuria during the Boxer Uprising, fighting one another in this strategic area in China’s northeast. Taking a cue from the weakening of autocratic resolve in Russia after its 1905 revolution, and impressed by Japan’s prowess, the Qing government announced its intention to begin preparing for an era of constitutional government by dispatching five high-level government ministers and their entourages on a worldwide tour to meet and study foreign governments. High-level officials and the court discussed their reports in the summer of 1906, and on September 1 an imperial edict announced that “while the throne remains the hub of the power, the manifold affairs of the state will be open to public discussion.”
Local elites celebrated the news in cities like Beijing, Tianjin, Shanghai, Guangzhou, and Shantou.
3.The principles of the Constitution (1908)
Many people inside and outside government contributed to the remarkably open debate that ensued about the future direction of China’s political reforms. Like Western and Japanese constitutionalism, Chinese constitutionalism in those years addressed fundamental questions, such as how to rationalize the division of political power both functionally and spatially. The other central concern of nineteenth-century constitutionalism-the protection of the rights of the individual-was also under discussion.
Chinese students who had been studying in Japan, some of whom were allies of Kang Youwei and his “protégé” Liang Qichao, and some who had been leaning toward the revolutionary program of Sun Yat-sen (Sun Yixian or Sun Zhongshan), came home to play important policy-making roles in the government, especially in the “ad-hoc” bodies responsible for defining a new constitutional order. For example, returned students dominated the proceedings of the government task force drafting electoral regulations for provincial assemblies.
These assemblies, as well as local and national assemblies, were outlined in the “Nine-Year Program of Constitutional Preparation” that was announced, along with “The Principles of the Constitution,” in August 1908. Some of these principles would inform the many outlines, drafts, and constitutions issued by subsequent regimes in China to the present day, even though constitutionalism in the post imperial era vested sovereignty in the people, a people whose representatives would write the constitution. This goal, however, would require viable constitutional mechanisms by which to assess the will of the people and to protect the rights of individuals – freedoms of speech, press, and assembly-adumbrated in “The Principles of the Constitution.”
4.Constitutionalism in Republican China
The search for these mechanisms in the Republican period was marked by a plethora of constitutions and ongoing constitution-writing. Unfortunately, for the student of Chinese constitutionalism, these discussions often masked a deeply political struggle for power. Sun Yat-sen’s Five-Power theory, which attempted to combine Western-style separation of power (executive, legislative, judicial) with traditional central government responsibilities for supervising officials (censorate) and identifying and selecting those officials (examination), would come to dominate the political landscape as his successor, Chiang Kai-shek (Jiang Jieshi), began to consolidate his power in 1927. Like Sun, Chiang was convinced that a strong state was antecedent to a constitution; Sun’s three-stage theory of constitutional development required first a military dictatorship and then a period of political tutelage.
This was an anathema to leading intellectuals like Hu Shi and Luo Longji. Both men, whose writings appeared in journals like Crescent Moon (Xinyue) in the late 1920s and early 1930s, argued that constitutionalism could only be achieved to the degree that China’s citizens had their human rights, including freedom of speech, protected by a state free from the domination of any particular political party. Their focus on the individual and on evolutionary development was at odds with both Nationalist and Communist approaches to these fundamental questions. Luo, whose 1928 Columbia University Ph.D. thesis, “Parliamentary Elections in England,” informed his thought and actions, worked with both Nationalist and, after 1949, Communist authorities, to realize his vision.
5.Constitutional developments in the People’s Republic of China
Like the ferment of the late-Qing period, there has been a vigorous debate in recent decades in the People’s Republic of China about political reforms, including the issue of a franchise with real power behind it at all levels of society.
Yan Jiaqi, for example, argued as an insider in the Chinese Communist Party in the 1980s for a new democratic politics that would be typified by the separation of party and government, freedom of speech, and the creation of procedures whereby leaders would be made accountable to the people. Implicit in Yan’s argument was the recognition that the rights guaranteed by China’s constitution were not, in fact, guaranteed in practice. Serious reservations remain about how to achieve these goals. Yan’s gradualist, insider position contrasts with the more well-known outsider’s call for democracy in “The Fifth Modernization.”
In 1978 Wei Jingsheng, a former Red Guard and army veteran, had written an essay that was a hallmark of the Democracy Wall movement. Wei’s second manifesto, “Human Rights, Equality, and Democracy,” echoed topics of moment to Hu Shi and Luo Longji. Wei, like Luo, would be imprisoned for his views. Hu Shi’s 1929 essay “What Path Shall We Take,” however, emphasized points that many of Wei’s opponents could still agree with, including Hu’s call for study and specific attention to five evils – poverty, disease, ignorance, corruption, and internal disturbances -that had to be addressed before any fundamental constitutional reform could finally be achieved.
There remain concerns, which date to the late Qing and could be heard in the Republican period as well, about the quality and perspectives of the prospective leaders to be empowered by the ballot; there are many who are uncomfortable with the idea of “people power” unvetted by state authority. This can be explained in part by a fear of elite factionalism, whether local, provincial, or national, that recurs in the history of Chinese political theory and practice.
Although the vision of late-Qing thinkers of a constitutional form of government that includes local, provincial, and national assemblies is still discussed, the specter of the 1989 Tiananmen Incident shadows discussions about the fundamental rights of individuals. The modern constitutionalism of the late-Qing period, influenced by Japan, the West, and China’s imperial past, marked a new direction for a dialogue between the government and the people of China that continues until the present.
SEE ALSO Constitutions before 1949; Constitutions since 1949; Elections and Assemblies, 1909–1949; Hu Shi; Kang Youwei; Liang Qichao.
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