Chinese Constitutionalism, Text and Meta-Text: Part 4

Zhujiajiao (Chinese: 朱家角; Pinyin: Zhūjiājiǎo Zhèn; Zhujiajiao means "Zhu Family Settlement") is  a well known local tourist destination, knowbn both for its scenery and its food.  

(From SHCR, Zhujiajiao)

“Located in a suburb of Shanghai city, Zhujiajiao is an ancient water town well-known throughout the country, with a history of more than 1700 years. Covering an area of 47 square kilometers, the little fan-shaped town glimmers like a bright pearl in the landscape of lakes and mountains.” Zhujiajiao Ancient Town, Travel Guide China.com.   The Chinese understand its beauty in a poetic as well as historical sense.  "The ancient streets paved with stone slabs, deep and quiet alleyways, arched stone bridges, little creaking boats all express the beauty of water in the ancient town of Zhujiajiao. The antiquity of the bridges, the rareness of the streets and the seclusion of the alleyways all present you a scene of "boats sailing on the water and people touring in painting." (SHCR, Zhujiajiao).

  (From SHCR, Zhujiajiao).

So began an interesting day that combined a number of interesting intersections as town and mind continued to be mapped within a dynamic culture. This was a day for boiled toad, water snails and sweet wine. These delights lubricated a series of intense and thoughtful conversations about the character of the Chinese Constitutional system.

The specific context was shuanggui, the CCP’s system for disciplining Party members. I have been thinking through some of the implications of this system, from the perspective of an outsider seeking an inside view.  I am sensitive to the problem of the error inherent in importing external values in judging the internal logic of another system in accordance with its own values structure. See, See Larry Catá Backer, Communist Party and State Discipline in China: Exploring Shuang gui 双规 and Shuang kai Part I, Law at the End of the Day, Aug. 2, 2011; Larry Catá Backer, Communist Party and State Discipline in China Part II: Brief Introduction to Shuang Kai and Pix Inside Shuang gui Facility, Law at the End of the Day,  Sept. 17, 2011; Larry Catá Backer, Communist Party and State Discipline Part III: Chinese Scholars' Views of Shuang gui Inter Party Discipline System, Law art the End of the Day, Sept. 23, 2011.

The possibility of working through shuanggui from the inside at a deeper level was irresistible. And indeed, shuanggui provides an excellent framework for mapping the contours of extra-constitutionality in the Chinese constitutional context. Better yet, our conversation provided a window on the way in which the ideas of constitutionality and extra-constitutionality are delimited in the minds of officials charged with conforming their behavior to these notions. 

(From China Highlights, Zhujiajiao Map)

The conversation itself could be mapped as a series of surprises. The first surprise was that a Westerner was aware of or interested in shuanggui from a legal and constitutional perspective. The surprise was deepened when the expected position from a Westerner—that shuanggui was both extra legal and unconstitutional without a doubt—failed to materialize. My surprise, the willingness of my hosts to consider the practice extra-constitutional, was augmented by the elaboration of arguments from necessity that were both thoughtful and well considered. By the end we had a set of role reversals of sorts—the Westerner defending the practices as both constitutional and at least theoretically amenable to discharge within contemporary rule of law standards, and the Chinese worried about the deleterious effects of the practices on the rule of law and a willingness to see the practice as extraordinary temporary. 

The Chinese view is easy for Westerners to understand.  Its core is founded on the assumption that the State Constitution is the complete expression of Chinese constitutional values and "law." To that extent, procedures and facilities that fall outside the Constitution either have to conform to its normative rules (the "rule of law" argument) or provide a constitutional basis for supporting the legitimacy of extra constitutional activity.  In this case, shuanggui is viewed as extra constitutional because it is npt described in the constitution, and its procedures are viewed as potentially extra legal because they fail to conform to constitutional guarantees and the statutes and regulations promulgated through the State Council-National People's Congress system for the implementation of rules for combating criminal activity.

I tried out a set of different arguments.  TO BE CONTINUED.