Zhang Xuezhong, translated by Andréa Worden, May 18, 2020
Zhang Xuezhong (张雪忠), born in 1976, was a law professor at China East University of Political Science and Law. In May 2013, he was the first academic to disclose the “seven speak-nots” (later known as Document No. 9), an order of the Communist Party circulated in Chinese academia that banned discussion of universal values, freedom of speech, civil society, civil rights, the historical errors of the Chinese Communist Party, crony capitalism, and judicial independence. Zhang was fired by his university later that year. Zhang is also a human rights lawyer who has represented dissidents, but his practice was short-lived because of obstruction from the university as well as the Justice Bureau in Shanghai. In 2019, he was permanently disbarred. On May 10, 2020, Zhang Xuezhong published the following open letter (Chinese version) along with a proposed draft of a genuine constitution (not translated), as opposed to China’s current “pseudo-constitution.” The next day Zhang was summoned by Shanghai police but released later that evening. — The Editors
My name is Zhang Xuezhong, and I am an ordinary Chinese citizen living in Shanghai. When you attend the third session of the 13th National People’s Congress (NPC) that begins on May 22, 2020, this novel coronavirus epidemic may not be over yet. I hope you will take necessary protective measures and I wish you safety and health, just like I send all people who need to go out to work or study during the epidemic the same good wishes.
Although I don’t know you personally, I know that many of you have achieved excellence in your work, so I admire you very much. However, admiration for your personal professional performance does not mean that I recognize your legitimacy as representatives of the Chinese people. For the following two main reasons: I don’t consider you to be legitimate representatives of the Chinese people, nor do I think that the NPC is a legitimate representative body.
First, you are not delegates (genuine representatives) freely elected by the Chinese people. The modern political representative system is based on the principle of popular sovereignty. Although the representatives who form the national representative body should have a certain independence from the voters when exercising their powers, that is, when conducting deliberations and decisions; their representative powers must originate in a delegation and mandate from the citizenry. Therefore, it must be created through periodic, free and competitive elections. But your status as a representative was not obtained through fair elections. In fact, no such elections exist in our country.
In addition, real representative bodies must go through necessary debate procedures when making public policy. This not only helps the public understand the pros and cons of the relevant legislation and policies, and thereby improve the level of public policy, but it also protects the people’s right to know about the decision-making process and content. But never, in all these years, have people seen you conduct debates about policy issues. Your performance in meetings is more like a roomful of machines that only know how to raise their hands, rather than as serious and conscientious genuine representative.
Second, the current “constitution” provides the basis for the creation and exercise of the NPC’s powers, but it is not a real constitution at all. A modern constitution is a legal document that implements popular sovereignty. On the one hand, popular sovereignty means that all citizens hold the highest political power in a country. On the other hand, a large number of nationals who are dispersed throughout a country renders it impossible to personally and directly conduct national governance. Consequently, they must create a representative government and elect government officials to conduct the work of daily governance. It is precisely the separation of this sovereignty and the power to govern that makes a constitution necessary. All citizens formulate a written constitution to create, limit, regulate and restrict government agencies and their powers, and then elect, supervise, and control government officials according to the procedures stipulated in the constitution.
The constitution should be the product of the political will of all the people; it is the stabilization and transformation into written form of the national political will. When all the citizens as sovereigns cannot directly be present, the constitution takes the place of the citizenry in the community’s political sphere to govern and guard –– using its supreme legal authority to oversee and warn all public institutions and public officials –– by urging the latter that they must not forget their own responsibilities even for a moment, and that they must not abuse the power that is in their hands.
Since the constitution should reflect the political will of all citizens, its formulation and revision must include a stage of national participation, which is a decisive and authoritative element of the process. Such participation can be direct, for example, a national referendum by the entire population is used to determine whether a draft constitution or a constitutional amendment will take effect. Participation can also be indirect, for example, for the purpose of drawing up or amending the constitution, the entire citizenry could vote to elect a special assembly to draft the constitution and authorize it to directly adopt or amend the constitution. The key point here is that government institutions (including legislative bodies) created by the constitution can’t become the authoritative bodies for drawing up, passing, or amending the constitution. In other words, the power to create the constitution (constituent power) and the power created by the constitution (constituted power) must be separated, otherwise, the constitution cannot successfully play the role of limiting, regulating and restricting government power (constituted power).
However, the formulation of the current “constitution” in China did not include procedures for citizen participation. The National People’s Congress, which originally drew up the constitution, was not freely elected by all citizens, and therefore, it was not a legitimate representative body that could implement the political will of the citizenry. Moreover, the NPC is not a special constitution-making body but a constituted body whose power is created and exercised in accordance with the provisions of the constitution. An absurd vicious circle has thus emerged: on the one hand, the NPC is an everyday, ordinary, legislature (one of the branches of government) whose creation and operations must be regulated by the constitution; on the other hand, it is the creator of the constitution and can, on its own, formulate and amend the constitution. In this way, the NPC is both created by the constitution and the creator of the constitution, just as if a person were both the father and son of another person at the same time! Moreover, a constitution is, in the first instance, used by all citizens to restrain all government agencies (including legislative bodies), but if ordinary legislative bodies can formulate and amend a constitution on their own, such a binding effect is completely lost.
In addition, the current “constitution” on the one hand stipulates that “all power belongs to the people,” and on the other hand, it stipulates the permanent leadership of a single political party. This is also paradoxical: if all power belongs to the people, the people have no obligation to accept the leadership of a certain political party, and if the people must accept the leadership of a certain political party, it is impossible to say that all power belongs to the people. A power to lead that transcends all power (of the people) is like a stone being larger than the largest stone, which is simply ridiculous.
Setting aside the “Solemn League and Covenant” during Cromwell’s rule in England and the constitutions of the separate states of the United States, the U.S. federal Constitution is the first formal modern written constitution in human history. With the successful implementation of this constitution, more and more people began to realize the role of a constitution in limiting government power and guaranteeing the rights of citizens. Many governments began to copy the United States and formulate their own constitutions based on similar political principles, thereby establishing a constitutional system in their respective countries.
During this process, “constitution” gradually became a very positive term, even those regimes that completely disagreed with modern political principles (these political principles are inseparable from the concept of a modern constitution), began to concoct documents called “constitutions.” The first regimes to do this were some authoritarian monarchies (such as Prussia in the 19th century): the monarch, as the supreme sovereign, bestowed upon the citizens a “constitution” that embodied the monarch’s will. Later, some countries with a single party that monopolized all political power did the same (such as the former Soviet Union and the current North Korea): the ruling party imposed upon the people a “constitution” reflecting the will of the party, and stipulated in the “constitution” its own permanent ruling status. In the field of constitutional law such things are called “pseudo-constitutions,” because they use the term “constitution” to provide cover for authoritarian regimes that are incompatible with a modern constitution.
Unfortunately, China’s current “constitution” is a pseudo-constitution. The constitution should be a manifestation of the political will of all the people –– those who do not directly govern–– rather than the political will of a certain monarch or a certain political party. One of the basic functions of the constitution is to ensure the continuous production and replacement of state power; it is to provide clear and stable principles and an institutional framework for everyday political competition and policy formation, thereby enabling peaceful domestic political competition and bringing about civility in the community’s political life.
A constitution is a means of legalizing political activities. Its role is not to eliminate political activities, but to regulate political activities, and to enable all kinds of political differences and disputes to be resolved, or dealt with, within the principles and framework agreed to by all parties, and from this, to be better able to implement rule based on reason (that is, government by discussion). Under a constitutional framework, people no longer use force as a means to seize power. The losing party will not only not be eliminated, but will also have the opportunity to win in the future. The principles and framework provided by the constitution for the settlement of political disputes enable seekers of various beliefs and interests to experience a certain sense of commonality and belonging, thus helping to maintain the unity of the political community and continuously strengthen unity and harmony in the whole society.
To do this, the constitutional constraints on the ruling power must be complete and comprehensive, that is, the entire process of the creation, operation, and replacement of the ruling power must be regulated. If a monarch or a political party can impose a “constitution” on a country and use the “constitution” to permanently monopolize political power, it means that they already controlled political power before the constitution was drawn up, and they must also have control of an organized armed force. However, in this way, their rule after the “constitution” is formulated is not based on the “constitution,” but only on the use of force. Such a “constitution” simply cannot impose a thorough and comprehensive restraint on power; on the contrary, it can only be used by those in power as an object to exploit, neglect, disdain, and arbitrarily change. Such a “constitution” is, of course, only a sham constitution, or a pseudo-constitution.
Delegates, just as you are not the real representatives of the people, the current “constitution” is not a real constitution. It is not a fundamental law used by the Chinese people to create and regulate government power, but only an operating manual used by the ruling party to form and operate its own power. Let’s do a thought experiment. If the Republican Party of the United States cooperated with the army, abolished the federal constitution and democratic system, and established a one-party regime supported by the army and police that forbids any political competition: (1) this regime could absolutely rule by continuously issuing special decrees; (2) but out of consideration for efficiency and convenience, it could also draw up a document, “Regulations on the Formation and Operation of the Republican Party’s Permanent Regime”; (3) in order to make the regime look like a modern regime, it can also name this regulation “The Constitution of the People’s Republic of America.” But who can deny that this so-called “constitution” and the abolished U.S. federal Constitution are two fundamentally different things?
It is impossible for a country to modernize its political system and social governance through a pseudo-constitution. A politically modern country is one in which citizens’ rights are reliably guaranteed. But in our country, people are not only deprived of their right to participate in politics, they cannot freely elect government officials at all levels, and they also lack effective protection of property rights and personal rights. For example, an originally completely legal private residential area turned into illegal buildings overnight that “had to be” forcibly demolished, simply because the government issued a new planning document. Public authorities can use the pretext of cracking down on criminal activities to arbitrarily seize lawful assets of enterprises. In some places, the government even forcefully and savagely removes the tombs of people ’s ancestors or dismantles crosses from the roofs of legally constructed churches. Another example is that since the petition system is provided for by law, petitioning should be a citizen’s right, but the actual situation is that local governments often dispatch people (i.e., “interceptors”) to restrict the personal freedom of petitioners. In recent years, more and more people have been summoned, detained, and sentenced for making statements on the Internet. And in many so-called “sensitive” cases, the defendants are not only convicted of speech crimes, but the rights ordinarily accorded defendants –– the right to hire a defense lawyer and to have a public trial –– are not even guaranteed.
When citizens’ rights cannot be implemented through a genuine constitution and government powers cannot be constrained through a genuine constitution, it’s impossible for the people’s livelihood to be valued by the government. Although the government has imposed a very high tax burden on the people, the resulting fiscal revenue must first meet the needs of officials at all levels who brazenly use all kinds of channels and methods to assign funds to their own pockets. In normal countries, people with financial difficulties are given priority for social welfare expenditures in government budgets, while in our country, priority is given to those in power. In many places [in China], the salaries of public servants, to begin with, are several times that of company employees, and they also usually enjoy more generous benefits than the latter. The pension public servants receive after retirement is also several times that of firm employees. Then there’s the shocking corruption and waste at all levels of government, which goes without saying. The entire bureaucracy and civil servants are no longer like public servants serving the people, but more like monsters that devour social wealth with no bottom line.
The outbreak of the novel coronavirus epidemic has had a great impact on the lives of people in many countries and brought great difficulties. Most people did not make psychological and financial preparations in advance. Under such circumstances, it is a common practice in many countries for elected governments at all levels to distribute some of the money from its finances to tide people over during a crisis. However, in our country, a government that shouts “ruling for the people” all day long is not willing to do so. Why is this happening? Because it is too difficult for all levels of authorities to hand over the bounty that’s fallen into their hands. Comparatively speaking, it is easier to ignore the needs and demands of the people, because government officials at all levels are not elected by the people and do not need to seek authority from them. Where civil rights are not implemented but people’s livelihoods are valued by the government — such a situation has never been seen before in the history of the world.
Because a modern political system has not been established through a genuine constitution, China’s social governance is still in a very backward state. The widespread corruption of government officials, the widespread lack of justice, the widespread deterioration of the natural environment, the repeated occurrence of food, medicine, and vaccine safety incidents, the excessively rapid rise in prices relative to the income of residents, the deficit and loss of faith in the social security sphere; in addition, it’s increasingly difficult for businesses to operate, and increasingly difficult for urban and rural residents to find employment, including college graduates, all of the above have seriously weakened citizens’ feeling of happiness and sense of security, and has made everyone feel confused and anxious about the future. In my opinion, the root cause of these crises is the political system in which power is monopolized by a few people. Under this pre-modern system, the power of public officials lacks even the most minimal restrictions and constraints, which makes them both abuse their power for their own self-interest and at the same time neglect to fulfill their duties with respect to the vital interests of the public, and even their life safety; the widespread corruption of officials and the utter collapse of social governance have therefore followed, inexorably, as a result.
The outbreak and spread of the epidemic illustrate the problem very well. When responding to public health crises, government that makes full and timely information known to the public can help the public make safe and reasonable choices about their conduct and living arrangements, which is key to avoiding an escalation of the crisis. However, the logic of informing the public as a rational response to crises is diametrically opposed and incompatible with the logic of social control in pre-modern systems of government. Judging from the existing public reports, the Wuhan local government not only concealed the epidemic from the public for a long time, but also severely suppressed citizens who revealed information about the epidemic. Since January 3, 2020, China’s foreign affairs agencies frequently notified the U.S. government about the epidemic, but the disease control departments did not simultaneously notify the people of our country: such an irresponsible attitude towards the safety of the lives of their own people is rare in the world!
On the other hand, for a long time after the earliest known cases appeared, there were few independent professional media to investigate and report on the outbreak, nor did medical professionals provide independent professional advice to the public, nor were social welfare organizations able to play a role. This is in no way to say that China does not have good journalists, good doctors, or citizens who love social welfare; it only shows that the government’s long-term tight control of society and the populace has almost completely destroyed the organizational and self-help capabilities of Chinese society. In the 22 days before the closure of the city, the Wuhan government was still investigating and punishing citizens who had shared information about the epidemic (including Dr. Li Wenliang, who sadly passed away), demonstrating just how strict and despotic the government’s suppression of society is.
After the epidemic broke out in Wuhan, the local government’s inefficient, incompetent, and careless response also attracted worldwide attention. After Wuhan “closed the city,” a large number of suspected patients could not be tested and effectively isolated in a timely manner, and a large number of people who were actually infected could not be treated in a timely manner. When the frontline medical staff took great risks to fight the epidemic, governments at all levels which ordinarily brag about their achievements, were actually unable to provide them with even the most basic level of logistical support. During the duration of the epidemic, the governments of various regions took advantage of their neighbors’ separatist-style “self-protection” actions and intercepted each other’s materials; a large number of human rights violations occurred in various places; as well as countless humanitarian disasters throughout the epidemic area, which fully made clear that the past 70 years, whether in terms of national construction or social governance, has been a complete and total failure.
At present, China urgently needs to replace the current extremely backward and unjust pre-modern system of government with a modern form of government based on the political principles of popular sovereignty, social autonomy, competition among political parties, separation of powers (checks and balances), judicial independence, and press freedom, among others, in order to implement civil rights, protect people’s livelihood, and realize the peaceful transition of national politics and the modernization of social governance. This means that it is necessary to replace the current pseudo-constitution with a genuine constitution that reflects the political will of all citizens.
Delegates, although I do not recognize your legitimacy as representatives of the people based on my own political beliefs, at the same time I believe that you have already formed a de facto institution of state authority, therefore, you absolutely can initiate the process of constitution-making by the citizenry, and thus make a major and historic contribution to China’s political transition and modernization. Here, as a member of the Chinese citizenry, I would like to sincerely make the following suggestions to you:
(1) Although the National People’s Congress is not legitimate as a regular and ordinary legislative body, it can transform itself into a special body that initiates the country’s political transition, whose main job is to formulate election rules and designate a neutral and fair election committee and to appoint the committee to organize free, universal and direct elections to produce a new national representative body. This representative body will be the institution with the highest authority in the transition period (hereinafter referred to as “the highest transitional authority”).
(2) The highest transitional authority has the power to form the highest administrative body during the transition period and appoint officials of the institution, and also has the power to make the necessary reforms to the judicial institutions at all levels.
(3) The highest transitional authority has the power to promulgate necessary decrees in order to complete the elections of local representative bodies at all levels and generate local administrative institutions at all levels.
(4) As soon as the highest transitional authority comes into being, it should create a broadly representative constitution drafting committee as soon as possible and appoint the committee to draw up a draft of a constitution that conforms to modern political principles. After the draft constitution is drawn up, it should be submitted to the highest transitional body for voting. If the vote doesn’t pass, the draft should be sent back to the constitution drafting committee for revision. If the vote on the draft passes, then it should be handed to the citizens for a referendum; and if it is adopted, then the constitution should be implemented.
(5) In order to create the [necessary] conditions for the election of the highest transitional authority, the NPC as a special body should adopt a resolution to immediately release all political prisoners and prisoners of conscience.
(6) In order to create the [necessary] conditions for the election of the highest transitional authority, the National People’s Congress, as a special body, should adopt a resolution to immediately lift the ban on political parties and restrictions on news publications, and allow people to freely associate and freely establish and operate news media.
(7) In order to create the [necessary] conditions for the election of the highest transitional authority, the NPC, as a special body, should adopt a resolution stipulating that a political party can no longer enjoy the position of a state public institution, and no member of a political party can enjoy the treatment and status of a civil servant.
(8) When the highest transitional authority meets for the first time, the NPC, as a special body, must immediately announce its dissolution. When the national representative bodies created by the new constitution meet for the first time, the highest transitional authority must immediately announce its dissolution.
Delegates, when you begin meeting on the 22nd of this month, you can go through the motions as before and become a prop that only knows how to raise your hands. But you can also choose to face squarely the various long-standing malpractices and crises of our country, shoulder a major historical responsibility, and create a new political situation for your own country, so that your country has a more beautiful future. If you choose to do this, you will not, like the previous irresponsible deputies of the NPC, sooner or later, fall into oblivion in the long river of history, but instead will be permanently recorded in the history books as the great pioneers of China’s constitutional government: Your names will be permanently engraved in the memories of future generations, and future generations will forever feel gratitude and respect for your achievements.
Andréa Worden, J.D., M.A., is a human rights advocate, translator, and writer whose research focuses primarily on China and its interactions with the UN human rights mechanisms. She will be a visiting lecturer at Johns Hopkins University Krieger School of Arts & Sciences during the Fall 2020 semester. Follow her on Twitter @tingdc
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