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  • Hamsini Hariharan

A Constitution without constitutionalism

This article first appeared in CNBC TV-18 on December 03, 2019 and can be accessed here.

A week after India celebrates the day it ratified its Constitution, China celebrates its own Constitution Day on 04 December. This is a new holiday, started only in 2014 by Chairman Xi Jinping to increase citizen’s awareness. Last year, the Chinese government even organised an entire week of celebrations.

In India, the courts and the Constitution were twins, birthed at the same time. The Constitution allowed for the courts to be set up and to have the power of interpretation. However, in China, the Constitution and the courts are far removed. In fact, it was only in 2001 that the Supreme Court in China even cited the Constitution for the first time. A young woman named Qi Yuling appealed against another woman who stole her identity and took her place in a vocational school. The Shandong court ruled in her favour but Qi was unhappy with the monetary damages and appealed on the grounds that it took away from her right to education. The local court looked to the Supreme People’s Court (SPC) for guidance. The SPC ruled in her favour, and interpreted the Constitution for the first time since the Chinese Constitution was ratified in 1982.

It’s also important that you know that the 1982 Constitution is the fourth Constitution of China. The other three (enacted in 1954, 1975 and 1978) were caught up in revolution and reform. The 1985 Constitution on the other hand, stepped away from political rhetoric and focused on economic construction, in line with Deng Xiaoping’s vision for the nation.

In India, cases about the Constitution started to flow in immediately after 26 January, 1950. But in China, this was hardly the case. The law failed to transcend politics. The new Constitution was only in name and even the Qi Yuling case had a short shelf life. By 2008, the Chinese Supreme Court decided to abolish its usage without providing any reason.

The Chinese government is increasingly using law-based language to increase its legitimacy. The number of court cases in China has skyrocketed. In 2018 alone, the Supreme People’s Court processed 34,794 cases -- a 22% increase from the previous year. Judicial reform is supposed to be underway particularly to foster technology and innovation. Whether it’s the reciprocity of foreign judgements, setting up its own Commercial Dispute Arbitration Court, hearing its first ever case of sexual harassment, China is keen for the world and its own citizens to know that the rule of law is important.

But is this the ‘rule of law’ or ‘rule by law’? Scholars like Carl Minzner argue that China is turning against ideas of constitutionalism and only using the narrative to reassert party power. Just last year, the Communist Party agreed to amend the Constitution to suspend term limits for the President and the Vice-President, to institute national supervisory committees, to include Xi Jinping thoughts on Socialism and the Belt and Road into the Constitution. These actions have political implications, particularly raising questions about whether Chairman Xi will relinquish power at the end of his term in 2022.

So far, the Chinese Constitution remains a document devoid of the principles of constitutionalism. Unlike India relied on the Constitution for a non-violent social revolution, the communist revolution in China served as a great equalizer. So, 04 December rolls around, pay attention to what China says about its constitution and constitutionalism. At the end of the day, the legitimacy of the Communist Party empowers the legal system and not the other way around.

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