The Emerging Structures of Socialist Constitutionalism with Chinese Characteristics: Extra-Judicial Detention and the Chinese Constitutional Order https://www.questia.com/read/1P3-3472098041/the-emerging-structures-of-socialist- constitutionalism

Backer, Larry Catá, Wang, Keren, Washington International Law Journal

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I. INTRODUCTION

Extra-judicial or administrative detention by the state, laojiao,1 has raised important issues of constitutionalism in China. The related practice of extra- judicial detention by the CCP, shuanggui, 2 have raised equally important issues about the relationship between the CCP, the state, and the nature of constitutionalism in China. In both cases, the issues can be understood as focusing on two principal questions. The first goes to the constitutional of laojiao and shuanggui. Legitimacy implicates the ways in which Chinese constitutionalism itself fits within emerging global notions of constitutional legitimacy, that is, whether China is a legitimately constitutional state. The second assumes the constitutional legitimacy of each practice, but considers whether the implementation of each system sufficiently conforms to Chinese constitutional requirements. Constitutional implementation implicates the way in which Chinese normative principles can constrain the practices of important political .

The issues of the constitutional legitimacy and constitutional implementation of laojiao and shuanggui provide an important window for understanding the normative structures of Chinese constitutionalism and its distinct basis for the organization of administrative and political power. It is well understood now that China is developing its own distinctive path toward socialist constitutionalism and . 3 Socialist constitutionalism with Chinese characteristics reflects China's history and its unique circumstances, but also conforms to the general principles of transnational constitutionalism. 4 The core premise of the Chinese constitutionalist order is the relationship between CCP and the state institutions. 5 The principle of scientific development, solidified as an important part of the core of the CCP Line, is grounded in the premise that a successful constitutionalist system not only needs to adhere to core substantive constitutional principles and norms, but also needs to be a "living "- one that both reflects socio-political present at hand in order to avoid personification, and also adheres to the CCP's foundational mass line.6 In Western political terms, the mass line might thus be understood as including characteristics of the core democratic principles of the political organization of the state.

China, like the vast majority of states since the eighteenth century,7 has adopted a written constitution. 8 Like the majority of states, the legitimacy of its and governmental actions is assumed to be judged by or through their conformity to the provisions of that document.9 However, China is also organized on the basis of Marxist-Leninist principles, which are accorded constitutional effect. 10 Its principal organizing effect is evidenced in a distinctive approach to . While Western are grounded in the amalgamation of all administrative and political authority in a government, whose combined powers are separated among executive, legislative, and judicial functions,11 the Chinese constitutional order is grounded on a principal of separation of powers that distinguishes between an administrative power assigned to the government and a political authority assigned to the Chinese Communist Party.12 Administrative constitutional power is organized within the State Constitution; the CCP is vested with a leadership through which the political authority of the people is expressed.13 Western critics sometimes err by suggesting that the Chinese approach to constitutionalism is not legitimate constitutionalism, because the Chinese constitutional system does not conform to the organizational forms of Western states.14 Chinese academics sometimes commit the same Western style error in reverse by conceding to the West the control of the definition of constitutionalism, suggesting that constitutionalism is itself incapable of universalization because its forms are grounded in ideological values unique to Western states. …

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