China's Quest for a Modern Constitutional Polity By Michael To A thesis submitted to the Faculty of Graduate and Postdoctoral Affairs in partial fulfillment of the requirements for the degree of Doctor of Philosophy In Political Science Carleton University Ottawa, Ontario © 2016 Michael To Abstract China's quest for a modern constitutional polity in the past one hundred years is still an unfinished business. It is this research's argument that for China to become a modern polity, it needs further social and political development, so that the Chinese people will have a stake in its polity and its constitutional framing. The research question of this thesis asks what lessons can we learn to support this argument from the analyses of the divergence/convergence between constitutional intents and the social and political needs of the past one hundred years. The key lessons learned in support of the research argument are as follows: -The traditional Chinese response to scarcity caused its underdevelopment. Underdevelopment in modern time is not an option as it has serious consequences. -Not actively competing in the world was the ultimate source of China's past decays. -Functional/institutional designs harming political participation can cause instability. -Ideology driven social restructuring can be disastrous due to its partiality. -State directed constitutional framing can hardly be expected to produce constitutionalism. -Constitutionalism requires social forces putting demands on the state. -Constitutionalism must be supported by statutes and political reforms. -The origin of a constitutional idea does not matter as long as it is truly needed in China. The research result makes clear what the state needs to do in its next phase of development. The current leaders’ recognition of the need to put state power under the constitution is a sign of new convergence towards people's demand for rights, rule of law and opposition to corruption and abuse of power. 2 Dedication To my wife Rebecca, for her unwavering support of my PhD endeavour 3 五子之歌: “...民惟邦本，本固邦寧...” 尚書, 夏書 The Song of Five Brothers: "...the people is the basis of a country, when the basis is secured, the country is tranquil...," circa 2043 BC.1 孔子曰："...且丘闻之, 君者，舟也；庶人者，水也。水则载舟，水则覆舟..." Confucius said to Duke Ai of the State of Lu: "... I have heard rulers are like boats, the multitude like water, water can carry boats, water can overturn boats...," circa 484 BC.2 1 The Song of Five Brothers, The Book of Xia in the Book of History 2 Xunzi, Duke Ai, Xunzi 31《荀子.哀公》篇. 4 Acknowledgements The time span under study and the complexity of China's modern development often led this research into multiple layers of details. The author, in many occasions, sought guidance and encouragement from Professor Darby, Professor Rajaee and Professor Sloan. I am indebted to their kind support and would like to take this opportunity to express my sincere thanks to them. Author's Note In this dissertation, the rendering of Chinese names into English uses the contemporary Chinese pinyin method. Also, the Chinese convention of placing the family name before the given name is followed. However, for well known Chinese persons and locations, their common English translation in previous Western publications are used. For example, the common Latinized "Confucius" is used instead of the pinyin version as "Kongzi". Also, Peking and Beijing are used interchangeably in the text. 5 Table of Contents Abstract 2 Dedication 3 Quotations 4 Acknowledgements 5 Author's Note 5 Introduction 7 Chapter I The Dynasty's Last Wish: an Absolutist Constitutional Monarchy 18 Chapter II The War Torn Period and its Final Attempt at a Liberal Constitution 64 Chapter III Constitutions of the People's Republic of China 108 Chapter IV Contemporary Social Responses and the State's Plan Going Forward 164 Conclusion 186 Bibliography 202 6 Introduction Currently, there is an unresolved debate in China on constitutionalism.3 On the opposing side, there are people who question the fundamental necessity for China to practice constitutionalism. They are also suspicious that constitutionalism is but another name for outright Westernization.4 On the supporting side, made up mostly of academics, economists, legal professionals and dissidents, the argument is for the need of constitutionalism and a liberal democratic polity.5 This situation begs the question why such debates are still happening. China's experience with constitution framing spans the past one hundred years. As such, constitutionalism should not be an unfamiliar concept. In fact, China’s first constitutional attempt began in 1906 and in the past one hundred years it has had a total of eleven constitutions. This unresolved debate on constitutionalism and the frequent constitutional revisions in recent years are indications of dissatisfaction with the current Chinese constitution and political system. As the outcome of this debate may tell us China's future direction, it is timely and important for us to understand the political, cultural and structural problems involved in this debate. Also related to the current debate on constitutionalism is a broader set of issues raised by ordinary people, elites and the political leadership. The issues raised include human rights, rule of law, popular sovereignty, democracy and the boundary between public and private sectors. This situation obliges us to ask: to what extent is constitutionalism an aspect of Westernization and to what extent it is driven by China's own internal needs. The 3 This dissertation uses McIlwain's definition for constitutionalism, that "it is a legal limitation on government; it is the antithesis of arbitrary rule; its opposite is despotic government, the government of will instead of law...a constitutional government is by definition limited government" Charles McIlwain, Constitutionalism: Ancient and Modern, (Cornell University Press, 1947), 20, 21. 4 Ma Zhongcheng, "Constitutionalism is Fundamentally a Weapon of Media War", [http://paper.people.com.cn/rmrbhwb/html/2013-08/05/content_1278294.htm], August 5, 2013. 5 Qian Gang, "The Uncertain Death of “Constitutionalism” [http://cmp.hku.hk/2013/09/02/33944/]. 7 question of cultural autonomy vs. Westernization may be a legitimate concern, but whether a regime's constitution is running counter to social norms and expectations, is a more fundamental question. Successive Chinese regimes since 1906 and their constitutions give us a historical record of the Chinese political and constitutional evolution in the past century.6 Each constitution in this evolution can be read as the regime's political goal, reflecting its ideology and its understanding of internal and external conditions. At the same time, we must also pay attention to a much larger evolution which is the social evolution of China from a pre-modern, agrarian society to a modern one since the 1840s.7 The two evolutions: the political/constitutional one and the social one run through China's turbulent modern period intertwined. We can not avoid examining the two evolutions together, noting their convergence, divergence and interactions. Failing to do so can only leave us a partial view. The Research Question China's quest for a modern constitutional polity in the past one hundred years is still an unfinished business. It is this research's argument that for China to become a modern polity, it needs further social and political development, so that the Chinese people will have a stake in its polity and its constitutional framing. The research question of this 6 The term "evolution" is used in a broad sense in this dissertation to mean fundamental changes, including revolutions and slower evolving changes. 7 The significance of the 1840s is due to the British invasion of China in the Opium War (1839-1842) and thus brought China into the modern international system of nation states. China's two thousand years old dynastic system began to unravel after the Opium War and came to its final end in 1911. China's transformation from its pre-modern agrarian society to modernity can thus be seen as started in the 1840s. 8 thesis asks what lessons can we learn to support this argument from the analyses of the divergence/convergence between constitutional intents and the social and political needs of the past one hundred years. Structural, cultural, and institutional perspectives should be considered in these analyses. It should also be the interest of this research to find what the state needs do in its next phase of development. The Research Approach This research is a single case study of China's quest for a modern constitutional polity. As such this research fits Anthony Orum's definition of case study as an intensive examination of a single case of a particular phenomenon.8 The selection of China’s constitutional evolution as the research focus fits also what Van Evera and others called the explanatory research case of intrinsic importance, appropriate for the explaining of a particular history and culture.9 This research also fits the atheoretical and interpretive types of cases per Arend Lijphart or Harry Eckstein’s configurative-ideographic and heuristic types of cases.10 As such, this research is expected to be qualitative, historical and interpretive. This dissertation uses Chinese historical material extensively, but it is not a writing of history. This research follows Paul A. Cohen's approach to understand the Chinese problems as "they are experienced in China by Chinese," i.e. to see it from "a more 8 A.M. Orum, "Case Study: Logic" in The international Encyclopaedia of the Social and Behavioural Sciences, ed. Neil J. Smelser and Paul B. Baltes, (University of Michigan, 2001), 1509-1513. 9 Stephen Van Evera, Guide to Methods for Students of Political Science, (Cornell University press, 1997) 78, 86, 87, and Gary King, Robert Keohane, Sidney Verba, Designing Social Inquiry: Scientific Inference in Qualitative Research, (Princeton University Press, 1994), 4, 18.