Tuesday, June 23, 2009

Constitutionalism and the Single Party State: On the Value of Localized Experiments in Shenzhen

I have suggested that it may be possible to construct a rule of law state adhering to principles of popular participation without adherence to the mass democratic principles increasingly popular in the West. This development is particularly characteristic of developments in China. See, Larry Catá Backer, The Rule of Law, the Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the 'Three Represents'), Socialist Rule of Law, and Modern Chinese Constitutionalism, Journal of Transnational Law and Contemporary Problems, Vol. 16, No. 1, 2006. These insights produce substantial consequences for the ways in which Chinese constitutionalism is understood and evaluated under global constitutionalist standards. These include the reflection of the party-state construct (1) in a division of the character of citizenship between economic and social citizenship, claimed by all persons, and political citizenship, which can be exercised through the Party, (2) in an understanding of political organization in which the state power and its institutions are subordinate to political authority, (3) in an institutionalization of political authority within a collective that serves as the source and conduit of constitutional values to be applied by the holders of state authority, and (4) in a system in which Party elaboration of rule of law values is contingent on state and party self discipline. Larry Catá Backer, The Party as Polity, the Communist Party, and the Chinese Constitutional State: A Theory of State-Party Constitutionalism(January 10, 2009), Journal of Chinese and Comparative Law, Vol. 16, No. 1, 2009; Penn State Legal Studies Research Paper No. 05-2009.

Over the last several years there has been an attempt to implement the rule of law principles developing within Chinese constitutionalism at the local level. Some of that has involved the process of developing governance models that apply the foundational party line. See Larry Catá Backer, Scientific Development (科学发展观) and Deepening CCP Governance at the Local Level--The Challenge Law at the End of the Day, Dec. 6, 2008. A recent report from ShenZhen, a city of sub-provincial administrative status in southern China's Guangdong province, might illustrate the most forward looking elements of Chinese Constitutionalist scientific development on this score. See, Yang Xingyun, Shenzhen Lays Ambitious Plans for Democratic Politics, EEO.com.cn, June 18, 2009 (From Nation, page 17, issue no. 372, June 16, 2008, translated by Liu Peng, Original article: [Chinese]).
China's earliest base for economic reform – was poised to spearhead political reforms in the country after local government recently announcing a three-year roadmap for more democratic elections at various levels. Between late May and early June, Shenzhen local government issued two documents outlining political reforms intended for the Special Economic Zone. The suggested ideas included conducting democratic elections for the posts of district chiefs and deputy chiefs that would eventually pave the way for future city mayorial elections. The City would also explore possibilities for direct elections of district level representatives for the People's Congress, and separation of powers in administration to investigate wrongdoings and assign penalties. In addition, a nomination and voting mechanism for Shenzhen Municipal Committee of Communist Party of China (CPC) to select bureau-level leaderships had also been proposed.
Yang Xingyun, Shenzhen Lays Ambitious Plans for Democratic Politics, supra. These reforms have been carefully vetted by Communist Party officials, and are said to fall in line with the fundamental Party position on scientific development.

ShenZhen is, of course, especially well positioned for such development. Its location adjacent to Hong Kong and its long time status as a sspecial economic zone suggest a maturity of political and economic infrastructure necessary for such experimentation. And the importance of the movement could be gauged, in part, from the reported reaction of ShenZhen's ecopnomic competitors. For example, it was reported that "upon the announcement of impending political reforms, the City came under pressure and ridicule from leaders of other provinces, according to sources in the Shenzhen local government. A city councilor, who was involved throughout the reform scheme drafting, told the EO that the latest move was aimed at strengthening Shenzhen's leading position in China's reform and opening-up, which started 30 years ago in this coastal city bordering Hong Kong." Yang Xingyun, Shenzhen Lays Ambitious Plans for Democratic Politics, supra. Indeed, the relationship between political and economic performance was very much on the minds of reformers. "Over the years, as preferential policies initially reserved for the Special Economic Zones were extended to other places across the country, Shenzhen has slowly lost its "unique appeal". Local authorities and keen observers then proposed that the only way to maintain Shenzhen's uniqueness and to achieve another breakthrough would be channeling its accumulated advantages from economic reforms into spearheading political reforms. " Id.

Ultimately, however, any such reform, especially reform that might affect the relationship of the Communist Party, as Party in Power, to the local political governance structure, will have to be carefully assembled. And in a sense, the reforms point to just that purpose--the strengthening of Party governance through efforts to institutionalize rule based Party governance, especially in its relationship with both local government officials and the people.
In fact, the EO learned that Shenzhen had already started experimenting with bureau-level leadership elections prior to publishing the reform scheme. On May 12, the Shenzhen municipal committee held a plenary meeting attended by some 140 members, each of whom had one vote to select qualified candidates to fill the vacancies of four bureau directors. The top ten candidates with the most votes would enter the competitive elections. They were then required to deliver an election speech at the meeting of the party's municipal standing committee, who then cast another round of votes. The top four candidates went on to head the bureaus. A source from the Shenzhen Reforms Office said further reforms included enhancing the operation of the Shenzhen People's Congress' standing committee, such as to increase the frequency of meetings and number of representatives, change the way bills were reviewed and approved, train representatives to be sensitive of public opinion, and to prepare more seats in the public gallery for residents to follow municipal meetings in session.
Yang Xingyun, Shenzhen Lays Ambitious Plans for Democratic Politics, supra. The nature of reform seems clear: to regularize the process of governance by giving local cadres greater roles in governance. Whether this develops into greater and more effective participation in fact remains to be seen. But it is significant that there is developing a sense of the importance of developing the forms of that participation at the local level. None of this is new to either the CCP or governance theories in China. What is new is the form in which these governance principles may e implemented, at least in the most economically advanced regions of the country.

The connection between the general party line on this score (in Western terms perhaps understood more as in line with emerging principles of substantive rule based constitutionalism) was sharply drawn by Li Luoli, "the vice-president of China Society of Economic Reform, vice-president and secretary-general of Comprehensive Development Institute. He was Shenzhen municipal office vice-director from 1988 to 1991, and between 1991 and 1993, he was deputy secretary-general of Shenzhen municipal committee of CPC." Id. He suggested six principles for undertaking the ShenZhen reforms: (1) transparency and openness; (2) intra-party reform; (3) legislative reforms; (4) conserve judicial resources; (5) enhance public participation; and (6) establish social monitoring mechanism. Yang Xingyun, Shenzhen Lays Ambitious Plans for Democratic Politics, supra.

By transparency and openness, Li focused on two areas. First was the value of applying the lessons of efficient governance to be learned from Hong Kong. Second, the willingness to invest in governmental infrastructure, both to convey information to the public and perhaps more importantly, as a defense against corruption. The latter, of course, is a goal very much in the minds of the Party and Government. "Setting up electronic government services would lead to more transparency and public scrutiny of official transactions and approval processes, thus minimizing grey areas for corruption. Making public yearly plans and corresponding budgets also open for public assessment." Id. It suggests that the simplest steps might have the most profound effects.

Intra-Party reforms have been at the heart of efforts from the local to the national level. Those reforms, of course, are critical if the Party is to maintain its position within Chinese society and provide effective leadership in line with Constitutional principles. The Party, in essence, leads by example. Li explains, "Shenzhen should take the lead in carrying out CPC democratic reforms, such as initiating elections in townships to elect the local party secretary and disciplinary committee secretary. Town residents could nominate candidates while the local CPC committee would vet and short list two to compete in elections, the one with most votes would be the secretary, and the one with less be the disciplinary committee secretary. This proposal would not create a shake-up in party but would enhance the democratization process." Id. None of these reforms undercuts the position of the Party as a leading element. But it does deepen the institutionalization of the Party within society and empowers Party cadres with the political rights inherent in Party membership. Those rights invest larger segments of the population in the system, diffuse CCP political values and stabilizes governance. Again, those were goals built into recent developments, from sange daibiao to scientific development. And none of these reforms affects the role of democratic centralism in the organization of governmental or Party functioning.

And, indeed, the later notions are well understood as the core of reforms. To reform the Party and its operation along scientific principles, understood in a Chinese constitutionalist sense, is then to reform the government. Li suggests that "Drafted laws in Shenzhen should first be examined and approved by the local People's Political Consultative Conference (made up of members from CPC, eight other political parties, and representatives recommended by over 100 industrial associations) and then handed over to local People's Congress for approval." Id. These reforms, then, are best understood as Party reforms first, and government reforms, secondarily. But that is in line with principles of the hierarchy of political power written into the Chinese constitution. See Larry Catá Backer, The Party as Polity, the Communist Party, and the Chinese Constitutional State: A Theory of State-Party Constitutionalism(January 10, 2009), Journal of Chinese and Comparative Law, Vol. 16, No. 1, 2009; Penn State Legal Studies Research Paper No. 05-2009.

Efforts to conserve judicial resources ought to resonate at some level in the West. The idea is to move away from the formality of judicial proceedings to adopt more informal mechanisms of resolving disputes. Li notes that "Some experts suggested setting up "intermediation center" and mobilizing social forces like lawyers and oath commissioners to mediate social conflicts. As long as the mediation process and agreement reached conformed to the law, the local court could just affix a seal to legalize the agreement and this could save the judicial resources." Yang Xingyun, Shenzhen Lays Ambitious Plans for Democratic Politics, supra. But that resonance is not necessarily always positive. One of the most delicate issues, and source of disagreement among Western and Chinese thinkers, is on the judicial role in Chinese governance. Putting aside the issue of the judicial role in constitutional or political matters, a role I have suggested ought to be vested formally in the Party (though I understand that the Party rejected that position in an earlier time, scientific development principles might suggest a revisiting of the issue under current conditions, Larry Catá Backer, A Constitutional Court for China within the Chinese Communist Party: Scientific Development and the Institutional Role of the CCP (November 28, 2008) ), rule of law impacts the people most directly in their interactions with the courts in their everyday affairs. This is an area that will likely require much greater elaboration. The benefit of mediation is speed and application of local custom. The detriments include arbitrary action by the mediators, corruption and the distortions of unequal access to resources to present a petitioner's position, especially among poorer elements--the proletariat and peasants. Great care will be necessary if this is to work properly.

Li correctly notes the connection between good governance, at the local level, and the need to understand and work with public opinion. "The local government, before making major policies, should first solicit public opinion through various channels, including interactive websites, public forums and publications in media." Yang Xingyun, Shenzhen Lays Ambitious Plans for Democratic Politics, supra. But this is a two edged sword. And it falls in nicely with the last principle--the need to monitor. "Let the public scrutinize, supervise and assess public administration and governance. Netizens in recent years have started doing that but there has been no consolidated or systematic mechanism to maximize the effectiveness of this public monitoring. " Id.

Just as the people are monitored for their opinion and conformity to law, so local officials ought to be monitored for compliance with their duties. Monitoring is the essence of governance in the 21st century, whether in single Party states like China, or in traditional western liberal democracies like the United States. See Larry Catá Backer, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies, Vol. 15, 2007.

From small reforms in ShenZhen, large consequences may be possible, at least fro parts of China. It will be interesting to monitor progress by the local government in ShenZhen to gauge the success of these reforms, both as theory and as praxis.

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