Sunday, November 18, 2018

"China's Changing Constitution" (15 Nov. 2018, Trinity College Oxford)--Brief Proceedings

Ewan Smith recently organized a marvelous event held at Trinity College, Oxford. Entitled China's Changing Constitution, it was held on 15 November 2018 and sought to accomplish two things.  The first was to consider the key strands of China's emerging constitutionalism, both form a domestic and comparative perspective. The second was to ensure that those strands included  envelop pushing techniques and approaches that, especially in the forms of accountability, supervision, and discipline, now tends to envision a scope of constitutionalist discourse well beyond its ancient borders.   

The event was organized in three panels. I spoke to issues of constitutional theory with Chinese characteristics, along with Nick Barber (Trinity College) and Jean Christopher Mittelstaedt (St Antony’s College). Flora Sapio then spoke to the Chinese Communist Party, Party supervisions and the constitution, along with Wu Qianlan (University of Nottingham), and Maris Köpcke – Trinity College. Lastly,Samuli Seppanen (Chinese University of Hong Kong), Ewan Smith (Jesus College), and Oliver Butler (Wadham College), spoke to issues of data, discipline and the state. 

Flora Sapio was kind enough to prepare a short proceedings of the event, which follows below. 


Notes of Proceedings
Prepared by Flora Sapio

On November 15, a workshop on China’s Changing Constitution was held at the University of Oxford. The workshop was organized by Professor Ewan Smith (Jesus College), with the goal to examine key trajectories of change in the Constitution of China, and connect them to broader questions in constitutional theory.

The possibility that a Marxist-Leninist constitution may contain elements relevant to the ideas justifying the internal organization of a state (and a state’s relationship with other states, supranational organizations, non-state actors, and individuals) seems to have been somewhat peripheral to the épistémè of constitutional theory. The workshop on China’s Changing Constitution brought this possibility to the centre of a day of intense academic debate. The workshop thus marked an extremely important step in the evolution of constitutional theory as such.

The analysis of constitutions inspired by the ideologies of Marxism and of Leninism has long been the purview of Kremlinology, or of area studies.  The state constitutions of the People’s Republic of China, but also Vietnam, Cuba, North Korea and Venezuela have more or less been held as objects of curiosity, to be compared side by side with the constitutions of European countries, and then stored in the boxes of curios of their respective sub-disciplines. 

In the meantime, theoretical reflection on constitutions and constitutional law has been attempting to develop doctrines bridging the constitutions of nation-states, with the constitutional orders of those actors that exist and operate across the conventional divides between public and private, domestic and foreign, political and legal. All those rules that create actors other than national states, and that determine their organization and operation have acquired a place within the conditions of possibility of constitutional theory.

As a result, the épistémè of constitutional theory includes concepts and norms emerging from the UN Charter; from free trade agreements; from the Articles of Associations of multinationals such as the Adidas Group, and NGOs as Amnesty International, but also from the foundational documents of political parties and political movements.  

The inclusion in constitutional theory of principles and mechanisms deriving from the constitutions of Marxist-Leninist political parties should not surprise. Neither should it be viewed with suspicion. In some constitutional systems, as in those of European states, the ideological, moral, and ethical foundations of the state are defined by the written or unwritten constitutions of national states. A feature of most of these systems is a relative absence of political parties attempting to introduce radical changes in governance, by positing themselves as the vanguard of groups defined on the basis of economic interest, ethnicity, religion, or any other feature.

There where Marxist-Leninist parties have introduced radical changes in domestic governance, the ideological, moral, and ethical underpinnings of the new order are memoralized in the constitution of the political party in power. The constitution of the state becomes the administrative channel allowing the political party in power to realize its governance goals. This is true of China,  but also of Vietnam, Cuba, Venezuela and North Korea.

China’s form of composite constitutionalism poses several stimulating challenges. Beyond the all too obvious linguistic and conceptual barriers, subtle and not-so-subtle differences and similarities involve the nature of Chinese constitutionalism, but also its principles, its institutions and mechanisms. Each one of these similarities and differences may in turn provide insights for all those who are developing constitutional theory beyond the state. Beyond Constitutional theory, some of these mechanisms and institutions are of obvious relevance to all those public and private actors that interact with their analogues in China, in Europe, and in the United States.

The first panel of the workshop was devoted to a discussion of the theoretical features of Chinese constitutionalism. “Constitutionalism” is among those words viewed with suspicion in China. Constitutionalism is often understood with reference to specific political theories underpinned by the principles of liberal democracy. Often forgot is how the very seeds of the Chinese revolution were sown as a reaction against the perceived betrayal of those very principles by their most ardent advocates. But today, China’s skepticism about Constitutionalism relates to concerns about national autonomy, more than to the existence of a body of binding rules regulating China’s governance apparatus and disciplining its members. As Professor Larry Catà Backer observed in his rich and complex presentation, in China there is a shared consensus about the need for the composite constitution to order politics and the state, Party members and civil servants. Within this shared consensus, three different schools of thought exist about a “socialist Constitutionalism with Chinese characteristics”. The divergences among these schools of thought relate to their respective positioning of the parameters ordering politics and the state. During his presentation, Professor Backer situated the constitutional work of the 19th Congress of the Communist Party of China (CPC) within contemporary Chinese debates on constitutional theory. He examined the changes in the dialectics between Party and State Constitution over time, noting the indispensable role of both the Constitution of the State, and the Constitution of the Party. He noted how constituent power continues to be driven by the political constitution of the CPC, coherent with the theoretical underpinnings of China’s Socialist Constitutionalism.

The second panel of the workshop examined in greater detail the systems of binding rules that regulate the political apparatus of China, and its administrative apparatus. Dr. Flora Sapio observed how China’s Socialist Constitutionalism may better be conceived in terms of systems of accountability, rather than with reference to the placing of limits on political and administrative power.  The constitutional work of the 19th Congress of the CPC has seen an overhaul of the system of accountability for administrative organs of the State, and the creation of the National Supervisory Commission.  In her presentation Dr. Sapio described how this system of accountability is coherent with the logic of Chinese constitutionalism. The composite nature of Chinese constitutionalism can be observed not only in the close nexus existing between the Party Constitution and the State Constitution. This composite nature is reflected also in the system of accountability for Party organizations and Party members on the one hand, and for civil servants on the other hand. The creation of the National Supervisory Commission may be paving the way to the adoption of tighter systems of accountability for State-owned corporations, coherent with the principle of Party leadership, and the regulatory needs of the Party and the State.

Systems of accountability grounded in Party discipline and administrative discipline go beyond the spectrum of intra-Party regulations, and the regulation of State organs and civil servants. One crucial development in the Party and the State’s effort to regulate behaviors has been the introduction of systems of monitoring and accountability based on the collection of big data, and their use in monitoring, shaping and rewarding (or punishing) individual conduct. The convenor of the workshop, Professor Ewan Smith, presented a marvelous analysis of the role of social credit in China’s governance. The use of data, analytics and algorithms in governance represents an unprecedented move from mechanisms and systems of accountability deriving from classical Marxist-Leninist theory. At the same time, social credit poses significant challenges related to the production of data, their reliability, and their use according to ethical guidelines. Cautioning against the perils of a monolithic system of big data governance, Professor Smith commented upon each one of these challenges, inviting the audience to reflect on points of similarity in Western approaches to big data governance, and the solutions found by Western systems. The emergence of approaches to regulation premised on the production and the analysis of big data, rather than on regulation through law, is a factor of broader uncertainty in constitutional theory as a whole. In his theoretically rich presentation about the National Supervisory Commission, Professor Samuli Seppänen noted how attempts to strengthen methods of discipline inspection based on Party discipline and administrative discipline are creating uncertainty among foreign scholars and experts. Uncertainty derives from the difficulty - for foreign scholars and experts - to reconcile the development of Party discipline mechanisms, and their extension to the State apparatus, with China’s attempts to realize law-based governance. Professor Seppänen explained how under an utilitarian approach to regulation, the creation of the National Supervisory Commission is entirely compatible with a strengthening of law-based governance. More importantly, this development in the Constitutional work of the 19th Party Congress provides an opportunity to ask far-reaching theoretical questions about our assumptions to the study of reforming Marxist-Leninist systems.


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