Xu Zhangrun vs. Tsinghua University
Voices of Protest & Resistance (XIII)

Zhang Qianfan (张千帆, 1964-), a professor of constitutional law at Peking University, first discusses the abuse of Xu Zhangrun 許章潤 by his employer, Tsinghua University, and then, in a lengthy interview granted to Initium Media 端傳媒, a leading independent Hong Kong media outlet, he expands the discussion in ways that hint at the importance of the ‘Xu Zhangrun Case’ not only for mainland China, but also for Hong Kong, and potentially for any group, body or nation that has dealings with the China of the Xi Jinping era.

Defenders of Xu Zhangrun have cited the Chinese constitution in their arguments. It is, however, hard not to be skeptical about appeals to a document that is more honoured  in the breach than in the observance. After all, even though the People’s Republic champions a complex, and ever-expanding legal system — one that justifies itself in thickets of Kafka-esque verbiage — it is one that from alpha to omega is overseen, overridden and abused by the very political agent that both generates and profits most directly from it: the Chinese Communist Party.

Nonetheless, Zhang Qianfan presents his views in a measured, reasonable and legally punctilious fashion. Here is a voice of moderate reason, one of a kind that is all too readily silenced by the bumptious fury of official China, not to mention by the sonorous bleating of aggrieved advocates of extremism, be they on the left or the right. Zhang’s is also a voice of caution of a kind that is increasingly rare on the global stage itself. Should one take heed of Professor Zhang in a mood of wistful nostalgia for a future that never was, or as a prescient augury that tells of a more hopeful tomorrow?

***

My thanks, as always, to anonymous Reader #1 whose presence graces this work in a most visible way, for he alerted me to typographical errors in the draft text as well as offering both timely and felicitous suggestions regarding the translations.

For other chapters in the series ‘Xu Zhangrun vs. Tsinghua University — Voices of Protest & Resistance’, see ‘The Xu Zhangrun Archive’, listed under Projects in the menu bar of this site.

— Geremie R. Barmé
Editor, China Heritage
22 April 2019

***

Still Call Yourself a University?

or

Tsinghua Should Learn How to
Treat its Academic Talent Properly

清华应善待自己的优秀学者

Zhang Qianfan 张千帆

Professor of Constitutional Law
Peking University 北京大学宪法学教授

Translated by Geremie R. Barmé

Tsinghua University has concocted for itself an excuse to discipline Professor Xu Zhangrun and suspended him from all teaching and administrative duties while also denying him the right to pursue his research work. This is an assault on the basic freedoms of a university professor as well as being an act damaging to the reputation of the university itself.

清华大学以莫须有的罪名，对许章润教授作出了停课、撤销职务甚至“停止科研活动”的处理决定。这不仅侵犯了一个学者的言论和学术自由，也损害了清华自己的声誉。

Professor Xu Zhangrun is recognised as an outstanding legal scholar. He has produced an impressive body of work and his coruscating style is widely acknowledged for reflecting a profound and generous vision. He is also known for his unparalleled eloquence.

Not too long ago, Professor Xu was officially celebrated as one of China’s ‘Ten Preeminent Younger Legal Minds’. Over the years he has been unwavering in his stance as a liberal thinker and his views have not undergone any change whatsoever. What has changed, however, is the discursive environment within China itself; recent years have seen a conspicuous tightening. Tsinghua University is not punishing him for publishing extreme or over-the-top views, rather he is being disciplined for daring to speak out and state the obvious in a repressive environment in which others do not dare express their views. He is being framed for a ‘Speech Crime’.

许章润教授是公认的优秀法律学者，其文采斐然、构思宏大、著述等身，是有目共睹的，口才更是无人能及。事实上，仅数年前，他依然受到官方的认可，曾被评为十大中青年法学家。多年来，他的自由主义立场是一以贯之的，思想观点一直没有变；变的是国内的言论环境，近年来显著收紧了。许章润教授之所以遭到清华的处罚，并不是因为他发表了什么激进或出格的言论，而是因为他秉公直言，在恶劣的言论环境下说出了众人不敢说的常理，因而是典型的“因言获罪”。

It is the Spring and Autumn which will make men know me,
and it is the Spring and Autumn which will make men condemn me.

知我、罪我，其惟春秋乎。

[Mencius quoting Confucius, as translated by James Legge,
to the effect that the Sage believed he would be judged by
later generations because of his work editing
the Spring and Autumn Annals, implying that
one’s words and deeds should not be judged in haste]

No scholar can offer an assurance that everything they write is flawless, but regardless of mistakes they have a right to publish their work. The validity of their arguments should not be adjudged by a clutch of intellectually uninformed individuals in some government agency or indeed by university administrators. Even more reprehensible than this is to silence forcibly a scholar through crude and thuggish administrative fiat. The academic world, if not the public at large, should be free to debate the merits of a scholar’s views openly. If Tsinghua University has come to the determination that statements made by Xu Zhangrun are incorrect, then it is incumbent upon that institution to ‘show its hand’ and to state its views publicly. Thereafter society as a whole can judge who is correct and who is mistaken.

知我、罪我，其惟春秋乎！学者的言论不能保证句句正确，但即便错误的言论也有发表的自由，而究竟正确还是错误，显然不能由任何部门或学校行政区区几个不懂学术的人决定，更不能通过简单粗暴的行政命令不让学者说话，而是应该让学术界乃至全社会通过公开辩论作出判断。如果清华认为许章润说的哪一句话不对，那就请公开”亮相“，让社会大众来评判究竟谁对谁错。

The refusal of one decent man
outweighs the acquiescence of the multitude.

千人之諾諾，不如一士之諤諤。

[Sima Qian, ‘Biography of Lord Shang’, Records of the Grand Historian
司馬遷著 《史記 · 商君列傳》. Xu Zhangrun often quotes this line.
See, for example, ‘And Teachers Then? They Just Do Their Thing!’]

In normal circumstances a scholar like Xu Zhangrun would be the pride of Tsinghua, instead he is now being punished. What has given rise to this absurd situation? It’s because there is at Tsinghua an incorrigible self-protecting bureaucratic system under the President and Party Secretary that, rather than finding ways to protect a scholar of conscience, prefers to play it safe by axing him. This is a hazardous and self-defeating act: Tsinghua does not belong to such Party bosses; it belongs to all of its teachers and students.

I recall that there’s a line in the school motto that talks about ‘social commitment’ 厚德载物. Now, while I might not know what the words ‘to uphold the ethical’ 厚德 in that phrase is supposed to mean exactly, I do know that through its actions Tsinghua has demonstrated that it has no desire ‘to uphold decency’ 厚道. I can only hope that more people at Tsinghua follow Professor Guo Yuhua’s lead [see Guo Yuhua 郭於華, ‘J’accuse, Tsinghua University!’, China Heritage, 27 March 2019], dare to speak out on behalf of their colleague and protect the reputation of their institution. [See the Update by Guo Yuhua below.] By so doing they will reaffirm the true meaning of the school motto. Regardless, Xu Zhangrun remains the pride of China’s legal world and I also hope that other people in the legal field will also speak up in outrage and to protect his rights.

“众人之诺诺，不如一士之谔谔。”许章润这样的学者本来是清华的骄傲，却反遭清华大学的惩处。之所以发生这样匪夷所思的事情，无非是因为在不可救药的官本位体制下，清华的校长书记们为了自己的乌纱帽而不得不拿自己学校的良心学者开刀，等于自毁长城。但清华并非这些头头脑脑的清华，而是广大教师学生的清华。我记得清华的校训中有一句是“厚德载物”，我不清楚这句话究竟意味着什么，但清华校方这么做显然不“厚道”。我希望更多的清华人能像郭于华教授那样，为自己的同行或老师勇敢发声，维护清华的校训和声誉。当然，许章润也是法学界的骄傲。我也希望有更多的法律人站出来为章润呐喊、维权。

The power of ideas cannot be denied. Ultimately, to criminalise speech and repress scholars only serves as ‘free advertising’ for their ideas. Don’t you people get it: most people have no idea who the president of Tsinghua is, but everyone now knows that there is a Xu Zhangrun at Tsinghua. In the process, Tsinghua’s leaders have become the object of scorn. Even now I hold out hope that Tsinghua will correct its folly, rescind its interdiction and move to protect its ‘positive assets’; in the process they might even avoid being branded as being guilty of this ‘historical blemish’ on their record of stewardship.

University leaders know full well what a significant a loss it would be it they were deprived of concrete school assets like real estate and equipment. We must ask, then, what kind of university is it that not only deprives itself of a true scholar but remains staunchly oblivious as to the scale and seriousness of what it’s done? Instead the leaders are congratulating themselves for having rid themselves of a ‘thorny problem’.

Is such a place still worthy of being called a university?

思想的力量终究是挡不住的。因言定罪、打压学者，到头来是为他做“免费广告”。君不见，许多人未必知道清华校长是谁，如今却知道清华有个许章润，清华领导反而成了众矢之的。我希望清华大学见错即改、收回成命，保护好自己学校的“正资产”，也免得在自己任内留下“历史污点”。一所大学失去了土地、资产，都知道是损失；失去了真正的学者，则浑然不知所失，甚至反而庆幸自己去掉了一根“芒刺”——这还是大学吗？

***

Source:

• 张千帆, 清华应善待自己的优秀学者, 《金融时报》, 27 March 2019

***

An Update by
Guo Yuhua 郭於華

My Dear Ones, I have just received a phone call from the Party Secretary of the Faculty [of Law at Tsinghua University] in which they conveyed a Formal Opinion formulated by the University administration:

1. My essay has been read; you have expressed your opinion. Matters remain as they presently stand, so don’t say any more and make sure you do not give interviews to ‘outside media’ [that is, the Hong Kong and International media];
2.  The University has yet to make a final determination in regard to Professor Xu Zhangrun. We are presently still engaged in a process of ‘discovery’ (is this an indication that the school is in retreat?).

My response: I believe that it will benefit both parties if  the University can resolve this matter with all the best of intentions, and in a rational and peaceable manner. If that is possible then, of course, I won’t need to say anything more. However, if the University continues to pursue this line of action in an obdurate fashion, and gives cause to an escalation of the situation, I cannot give any undertaking to remain silent or to continue to turn down interviews requests from the foreign media.

— Guo Yuhua 
27 March 2019

郭于华教授：各位亲友，刚刚接到学院党委书记的电话：传达学校领导意见：1、文章已经看到了，你的意见也表达了，已经这样了，就不要再说什么了，尤其不要接受境外媒体采访。2、学校并没有做出对许章润教授的处理决定，现在还在调查了解情况阶段（这是要有所后退吗？）。我的回答：希望校方以最大的善意、理性平和的方式解决问题，对双方都有好处；若能如此我当然不会再说什么；但如果一意孤行，继续加码，我不承诺不再说话和不再接受外媒访谈。

***

Source: 

• 网络上传出的消息, 《中国禁闻罔》, 28 March 2019

Related Material:

• Guo Yuhua 郭於華, ‘J’accuse, Tsinghua University!’, China Heritage, 27 March 2019
• The Xu Zhangrun Archive, China Heritage

Initium Media Interviews Zhang Qianfan in Hong Kong

Initium Media 端傳媒 duān chuán méi is an independent Chinese-language news outlet founded in Hong Kong in 2015. While ‘initium’ is a Latin word for ‘beginning’, the company’s Chinese name is 端 duān, a term that famously appears in the classical philosophical text Mencius 孟子. As we wrote in the notes accompanying a translation of Xu Zhangrun’s work, in classical Confucianism 端 duān generally refers to innate goodness or the innate attributes of humanity 德行 dé xíng articulated by the Confucian philosopher Mencius in the fourth century BCE.

In Mencius, the 四端 sì duān feature in a memorable discussion about human nature:

The feeling of commiseration belongs to all men; so does that of shame and dislike; and that of reverence and respect; and that of approving and disapproving. The feeling of commiseration implies the principle of benevolence; that of shame and dislike, the principle of righteousness; that of reverence and respect, the principle of propriety; and that of approving and disapproving, the principle of knowledge. Benevolence, righteousness, propriety, and knowledge are not infused into us from without. We are certainly furnished with them.

乃若其情，則可以為善矣，乃所謂善也。若夫為不善，非才之罪也。惻隱之心，人皆有之；羞惡之心，人皆有之；恭敬之心，人皆有之；是非之心，人皆有之。惻隱之心，仁也；羞惡之心，義也；恭敬之心，禮也；是非之心，智也。仁義禮智，非由外鑠我也，我固有之也。

— ‘Gaozi, Book VI, Part I, Chapter 7’
The Works of Mencius《孟子 · 告子上》
trans. James Legge

— GRB

***

Eventually, Political Climate Change 
Will Melt China’s Ice-bound System

憲政文明的暖流會融化
中國體制的堅冰

An Interview with Zhang Qianfan
Professor of Constitutional Law

專訪憲法學者張千帆

Reported by Qi Zhenyu 戚振宇 and Fu Yuxin 符雨欣

Translated by Geremie R. Barmé

Zhang Qianfan is one of China’s most celebrated scholars of  constitutional law. The scope of his research embraces administrative law, the legal system, comparative legal studies between China and the West, ethics and legal thinking.

張千帆是中國最負盛名的憲法學者之一，研究領域包括比較憲法與行政法，司法制度，中西方政治、道德與法律思想。圖為攝於2011年的張千帆。

In the conclusion to the 27 March article he wrote in support of his good friend, Tsinghua University professor Xu Zhangrun, Zhang Qianfan said:

University leaders know full well what a significant loss it would be for them to be deprived of concrete assets such as real estate and equipment. We must ask, then, just what kind of university not only deprives itself of a true scholar but also remains oblivious to the scale and seriousness of what has happened? Instead they are congratulating themselves for having got rid of a ‘thorny problem’.

Is such a place still worthy of being called a university?

The previous day, in response to his public outspokenness, Tsinghua University had placed Xu Zhangrun under formal investigation and concurrently suspended him from all teaching and administrative duties while also denying him the right to pursue his research work.

「一所大學失去了土地、資產，都知道是損失；失去了真正的學者，卻渾然不知所失，甚至反而慶幸自己去掉了一根『芒刺』——這還是大學嗎？」3月27日，北京大學憲法學教授張千帆發表文章，為其好友、清華大學法學院教授許章潤教授發聲。一天前，許章潤因其發表的一系列言論，而被清華大學撤銷一切職務並啟動調查，在此期間被停課、停止招生，並停止一切科研活動。

Zhang Qianfan’s situation was not much better than that of Xu Zhangrun. Shortly after publishing his appeal, Zhang’s WeChat account was suspended. Previously, in January this year, his widely used texts on constitutional law had been removed from university bookshelves. According to online discussions, his work was now seen as ‘Propagating Western Ideology and Extolling the Western [that is, liberal democratic] System’.

Originally published in September 2004, Zhang’s textbook had been reprinted many times and was on the syllabus of numerous Chinese law schools. But, in January 2019, the Office of State-approved Teaching Materials, a bureau under the Ministry of Education in Beijing, issued instructions calling for a comprehensive review of all textbooks used in the country’s law schools. The results of the review were reported to the ‘Marx Project Section’ of the Ministry’s Teaching Materials Bureau. It was already evident that texts like Zhang’s books on constitutional law would be removed from the nation’s syllabi and replaced with materials compiled by the ‘Marx Project’ — short for ‘Project for the Study of the Theory and Application of Marxism’. [The banned textbooks are: Introduction to the Study of Constitutional Law 《宪法学导论》，法律出版社2014年第三版; Constitutional Law《宪法学》（主编），法律出版社2014年第三版; and, Lectures on Constitutional Law《宪法学讲义》，北京大学出版社2011年版. In 2014, the State Press and Publication Administration had already banned Zhang from being published. — trans.]

同為憲法學者的張千帆處境並沒有好多少。在聲援許章潤的文章發出後不久，他的微信賬戶就被封鎖。而在今年1月，他所編撰的憲法學教材也在全國範圍內被下架，網傳被下架原因是「宣揚西方思想、鼓吹西方制度」。這套教材於2004年9月出版，十五年來多次再版，被中國多所高校法學院所使用，但1月初，中國「國家教材委員會辦公室」下發了一份《關於開展高校憲法學教材全面摸底工作的通知》，要求全國各高校對學生正在使用的憲法學教材進行全面摸底，並將結果上報「教育部教材局馬工程教材處」。可以預見，未來將不會再有高校會使用這套教材，而「馬工程」（即馬克思主義理論研究和建設工程）所編寫的材料將會被優先使用。

Despite this relentless pressure, Zhang went ahead and published an appeal on behalf of Xu Zhangrun in which he declared: ‘The power of ideas cannot be denied.’

In a public lecture presented during a stint as a visiting scholar at Hong Kong University’s School of Law in March this year, Zhang Qianfan called for Beijing to allow Hong Kong greater autonomy. He told his audience that mutual trust was essential for the establishment of any kind of meaningful social contract between the two fractious parties and that it was only on such a basis that the present political stalemate in the Special Administrative Region of Hong Kong could be resolved.

重重壓力之下，張千帆並沒有退縮，在聲援許章潤的文章中，他寫，「思想的力量終究是擋不住的」。今年3月，他獲邀訪問香港大學法律學院，並發表公開演講，呼籲北京給予香港更大的自治權，以社會契約精神建立彼此互信，解決香港目前的政治僵局。

Fifty-five year old Zhang Qianfan is one of China’s most celebrated scholars of constitutional law. After graduating with a degree in Physics from Nanking University he pursued graduate studies in the United States, earning a doctorate in Biophysics from Carnegie-Mellon University in 1989. Thereafter, he decided to pursue his interest in law and undertook another degree, studying at the University of Maryland from 1992 to 1995. In 1995, Zhang was admitted to the doctoral program in government of the University of Texas at Austin. Following graduation in 1999, he took up a teaching position at his alma mater, Nanking University, before being offered a lectureship at Peking University, where he has been teaching since 2003. Zhang’s research interests include Comparative Constitutional Studies, Administrative Law, Judicial Systems, as well as Chinese and Western Politics, Ethics and Legal Thought.

今年55歲的張千帆，是中國最負盛名的憲法學者之一。他在20歲時取得南京大學物理學學士，隨後負笈美國，於1989年取得卡內基-梅隆大學生物物理學博士，但隨後興趣轉向法學，1992年到1995年在馬里蘭大學修讀法律，並於1995年進入德克薩斯大學奧斯汀分校修讀政府學博士，1999年獲得博士學位後赴南京大學任教，並於2003年進入北京大學擔任教授至今。他的研究領域包括比較憲法與行政法，司法制度，中西方政治、道德與法律思想。

Constitutional Conundrums Under the Party-State
黨國體制下的憲法難題

Initium: What is your view of the relationship between the Constitution of the Chinese Communist Party and China’s National Constitution?

端：您如何看待中共黨章和中國憲法之間的關係？

Zhang Qianfan: Since I’m not a Communist Party member I’ve never really paid much attention to the Party Constitution. But you’re right, many people are curious about the relationship between the Party Constitution and China’s National Constitution. It seems to me that it’s a rather challenging relationship.

張：我沒有怎麼關注黨章這一塊，因為我不是黨員。黨章和憲法的關係有很多人關心，似乎是一個不容易說得清楚的問題。

I would observe that, although the Party charter is essentially a ‘Party Constitution’, there is no doubt as to the inherent connection between it and the National Constitution, in particular since all individual political party charters must conform to the stipulations of the National Constitution as a whole.

其實呢，黨章可以被看作是「黨的憲法」；它和國家憲法之間的關係是沒有懸念的，那就是黨章必須符合憲法。

Significantly, one notes that, at the end of the Preamble to the Constitution, it says that the document ‘it is the fundamental law of the state and has supreme legal authority.’ Furthermore, in Article 5 [of Chapter 1: General Principles] it is clearly stipulated that:

‘No law or administrative or local rules and regulations shall contravene the Constitution.

‘All state organs, the armed forces, all political parties and public organizations and all enterprises and undertakings must abide by the Constitution and the law. All acts in violation of the Constitution and the law must be investigated.’ [— official translation]

Therefore, it is absolutely clear that the National Constitution is China’s undisputed Basic Law and that no political party can override it, and that includes the Ruling Party.

首先，憲法在序言最後寫道：憲法「是國家的根本法，具有最高的法律效力」；憲法第五條更是明確規定了：「一切法律、行政法規和地方性法規都不得同憲法相抵觸。一切國家機關和武裝力量、各政黨和各社會團體、各企業事業組織都必須遵守憲法和法律。一切違反憲法和法律的行為，必須予以追究。」這非常清楚地表明憲法在中國是獨一無二的基本法，任何政黨都不可以超越憲法，執政黨也不例外。

Obviously, Article 5 just says ‘No law or administrative or local rules and regulations’ etcetera, and it does not specify the Constitution of the Chinese Communist Party. However, immediately after that statement it clearly says that ‘all political parties … must abide by the Constitution and the law’. That is to say, that the Party Constitution of the Ruling Party [that is, the Communists] must also accord with the National Constitution. There is no ambiguity.

雖然憲法第五條「一切法律、行政法規」等沒有寫明黨章，但是後面寫了「各政黨必須遵守憲法和法律」，表明執政黨制定的黨章也是要符合憲法的。在這點上是沒有任何歧義的。

Initium: But, in reality, is it not the case that the National Constitution has always been subordinate to the Communist Party’s Constitution?

端：但在現實中，憲法似乎一直跟着黨章在走？

Zhang: It is indeed an objective fact that the National Constitution was drafted under the direction of the Ruling Party. One could say that the 1982 Constitution [a document that represented a substantial revision of the late-Mao-era Constitution] was the legalised expression and codified expression of the Ruling Party’s Will.

The leadership role of the Ruling Party is written into the Preamble of the Constitution [where it states that:

‘Under the leadership of the Communist Party of China and the guidance of Marxism-Leninism and Mao Zedong Thought, the Chinese people of all ethnic groups will continue to adhere to the people’s democratic dictatorship and follow the socialist road, steadily improve socialist institutions, develop socialist democracy, improve the socialist legal system and work hard and self-reliantly to modernize industry, agriculture, national defense and science and technology step by step to turn China into a socialist country with a high level of culture and democracy.’ — official trans.]

More broadly speaking, one could say that, apart from the Constitution itself, all of China’s laws and regulations can be seen in a similar light, that is, as an expression of the Ruling Party’s Will. However, following the 1999 revision of the Constitution — when the concept that China is a ‘country ruled by law’ was written into the document thereby affirming ‘rule on the basis of law’ — it has been incumbent upon the State to apply the rule of law and to oppose one-man rule [or rule by the fiat of individuals]. Concomitantly, the leadership role of the Ruling Party itself must also accord with the concept of the rule of law.

張：客觀的講，憲法是在執政黨的領導下制定的。1982年憲法可以說是執政黨意志法律化、成文化的體現。憲法序言也規定了執政黨的領導地位。事實上，不光是憲法，其他的法律法規也都可被認為體現了執政黨的意志。但是至少在1999年修憲後，憲法又規定了「法治國家」、「依法治國」這些理念，表明國家有義務實行法治、反對人治，執政黨的領導地位必須和法治理念統一起來。

In other words, despite the fact that the nation’s laws and regulations were generated under the leadership of the Ruling Party, since they have now been established [within a legal constitutional framework] the Party should by all rights be subject to those laws itself and that it should not continue to interfere in administrative or judicial processes. All of this is what, in effect, Article 5 in the Constitution affirms.

換言之，法律法規確實是在執政黨領導下制定的，但是一旦制定出來以後，就應該老老實實按照法律去做，不能再干預行政和司法。這也是憲法第五條的題中之義。

[Translator’s Note: for recent scholarship on this subject, see the articles listed in ‘Related Material’ at the end of this interview.]

Initium: Among the March 2018 revisions to the Constitution, one [is Article 36 that] inserts a new sentence [in paragraph 2] of Article 1 after the words ‘[t]he socialist system is the basic system of the People’s Republic of China’. The new sentence reads, ‘The defining feature of socialism with Chinese characteristics is the leadership of the Communist Party of China.’Doesn’t this clash with Article 5 [referred to above]?

端：但去年修憲時，將「中國共產黨領導是中國特色社會主義最本質的特徵」加入到了憲法第一條，這和憲法第五條會不會有衝突？

Zhang: One of the Four Cardinal Principles — ‘Adherence to the Leadership of the Chinese Communist Party’ — is already embedded in the Preamble to the Constitution. To have singled out this particular concept in this fashion now, and to have written it into Article 1, does indeed make it more prominent. [As a result, Article 1 of the Chinese Constitution now reads:

‘The People’s Republic of China is a socialist state under the people’s democratic dictatorship led by the working class and based on the alliance of workers and peasants.

‘The socialist system is the basic system of the People’s Republic of China. The leadership of the Communist Party of China is the defining feature of socialism with Chinese characteristics. Disruption of the socialist system by any organization or individual is prohibited.’ — official trans.]

張：堅持黨的領導作為四項基本原則之一，原本就在憲法序言中；現在將它單獨拿出來放在憲法第一條，就更加凸顯了。

However, it should be pointed out that during this latest round of revisions [in March 2018], Article 5 remained untouched; it was neither altered nor expunged. The only interpretation of this fact is that Article 5 still reflects the Rational Will of the Ruling Party and, as such, it means that, according to the Constitution, the Ruling Party’s actions must still accord with the spirit of that document.

然而，修憲中並沒有修改或刪除憲法第五條。這只能被理解為第五條仍然體現了執政黨的理性意志，執政黨的具體行為仍然需要和憲法所體現的理性意志相符合。

It is crucially important to be aware of the fact that the stipulations in the Constitution in regard to the leadership role of the [Communist] Party in abstract and general terms, not regarding the concrete activities of leaders at all levels as they go about the day-to-day governance of the country.

People in positions of authority are only human and, as such, they are prone to error. For instance, a county Party Secretary may well abuse his or her power. Obviously, the Constitution’s stipulations in no way suggest that there should be the deification of any Party leader, for to do so would be tantamount to giving license to one-man rule, something that is in direct contravention of Article 5 where it states that:

‘The People’s Republic of China practices ruling the country in accordance with the law and building a socialist country of law.’

These are issues that were cleared up back in the 1980s and a consensus view on the matter was reached [and Section 2, Article 79 of the revised 1982 Constitution expressly stated that:

‘The term of office of the President and Vice-President of the People’s Republic of China is the same as that of the National People’s Congress, and they shall serve no more than two consecutive terms.’ — official trans.]

There is no reason for this to be problematic now.

我們必須理解，憲法規定的黨的領導是抽象和一般的，不是指治國理政日常實踐中各級領導人的具體行為。任何領導人都是會犯錯誤的凡人，譬如某個縣委書記完全可能濫用職權。憲法規定的黨的領導顯然不是要神化任何領導人，否則就變成了人治，就抵觸了憲法第五條規定的法治和依法治國。這些問題早在八十年代就得到清理並達成共識，現在不應該再成為問題。

And this is why the crux of the matter is not the leadership of the Communist Party as such, rather it is a question of how the Party rules. A Ruling Party expresses its Political Will within the framework of a Constitution and the law. A Ruling Party’s Will should, by all rights, achieve expression via democratic and legal processes, not by means of various speeches or directives. Of course, a Ruling Party is within its rights to determine its actions according to the stipulations of its own Constitution and rules. However, those rules must accord with the National Constitution.

That is to say, since you use constitutional provisions to affirm adherence to the leadership role of the Party, this itself is an expression of the fact that the Ruling Party can only rule within the limits determined by the Constitution itself and within a legal framework that itself is subservient to the Constitution. Otherwise, if the Constitution is treated as a meaningless document then the Party’s leadership itself has, in effect, no legal basis either.

因此，問題不在於黨的領導，而在於如何領導。執政黨需要通過憲法和法律去體現其意志，執政黨的意志應該通過民主和法治程序體現出來，而不是通過各種講話或指示。當然，執政黨的行為可以通過制定黨內規章加以規範，但這些法規、規章都必須符合憲法。事實上，你用憲法規定來堅持黨的領導地位，這本身已表明執政黨只能在憲法與合憲法律的框架內行使權力。否則，憲法沒有意義的話，黨的領導也就沒有法律根基了。

Initium: But we all know that in China citizens cannot pursue a legal case on the basis of some act [by the power holders that is] in breach of the Constitution. Given that fact, don’t you feel that the Constitution is in an invidious position?

端：但我們知道，憲法在中國沒有可訴性，公民無法以違反憲法為由提起訴訟，在這樣的情況下，您覺得憲法的地位是不是非常尷尬？

Zhang: I regard this as a kind of self-imposed limit. The Constitution itself does not forbid citizens from pursuing constitutional complaints nor, for that matter, does any other law. The Constitution is a legal document, a fact that is explicated in the Constitution itself. It outlines the rights and freedoms of citizens, as well as the powers, limitations and duties of the government. Therefore, by all rights, any public power or organisation that violates the Constition should be liable to constitutional litigation.

At present, however, there is no formal legal process outlining how one can go about making a constitutional complaint [that is, how a citizen can launch a legal complaint on grounds that their fundamental rights as determined by the Constitution have been violated as the result of an act of state authority]. That does not [in theory] mean that a law court cannot consider a constitutional complaint. On the contrary. In the process of passing a judgment on a case, the courts are duty bound to interpret the law according both to the word and the spirit of the Constitution. There is no law forbidding a court from applying the Constitution [to a particular case]; indeed, if there were such a law it would itself contravene the Constitution and, as a result, be null and void. In reality, many of the rights enjoyed by citizens do not require further legal articulation and they should be protected in any judicial process.

張：這是一種自我設限。憲法並沒有禁止，其他法律也沒有禁止憲法訴訟。憲法本身是一部法律文件，這是憲法本身明確說明了的。憲法規定了公民權利與義務、政府的權限和義務，任何公權力機構違憲的話都應該可以提起訴訟，只不過現在沒有法律規定違憲的訴訟程序。但這並不是說法院就不能受理憲法訴訟。恰好相反，法院有義務在審判過程當中按照憲法的規定與精神來解釋法律。沒有任何法律禁止法院適用憲法，這樣的規定有的話也是違憲無效的。事實上，很多憲法規定的公民權利並不需要再專門制定成文法，就可以直接通過司法程序來保護。

That’s why, theoretically speaking, it is wrong for a court to refuse to accept a case on the grounds that it is a constitutional complaint. There can be no reason for not accepting such a case and to do so constitutes judicial malfeasance. Even in circumstances in which the judiciary is insufficiently independent and lacks the courage to be proactive in such cases, when applying the law it should, nonetheless, act in a manner that accords both with the spirit and the principles of the Constitution; it should use the law in a manner that explicates and pursues Constitutional provisions thereby imposing restraints on public power.

因此，法院不受理憲法訴訟的行為在理論上是錯誤的，沒有任何理由不受理，不受理是一種司法瀆職。即便法院不夠獨立、不敢那麼積極主動，也應該在適用法律的時候貫徹落實憲法的精神和原則，以合憲的方式解釋和適用法律，並以此約束公權力。

Initium: But the reality is that if the judiciary refuses to accept a case brought before a court a citizens is simply powerless to do anything about it. Surely this is proof that legal statutes and provisions are divorced from judicial practice.

端：但現實中法院不受理其實你也沒有任何辦法，這就讓法律規定和司法實踐顯得很脱節。

Zhang: This kind of disconnect is evidence that the Government is unwilling to put the Constitution into practice because it limits the power of the State and bestows rights on the citizenry, so that in exercising power the government may not infringe on the rights of citizens.

張：這種脱節的狀況表明政府其實不願意實施憲法，因為憲法限制了政府的權力，又賦予了公民權利，因而政府在行使權力的過程中不能侵犯公民權利。

Of course, the reality of the situation is that no government, regardless of the country, wants to obey the constitution. In democratic societies, however, governments have no choice but to abide by their constitutions since, eventually, they have to confront citizens at the ballot box. If a government ignores the constitution it will offend too many people and, eventually, the politicians in power will be thrown out of office.

However, if a government never has to face a real election and feels no compulsion to be answerable to its citizens, it will naturally think that even if it ignores its own constitution it will not suffer any adverse consequences. That’s why the first requirement for constitutional rule is to work out how to establish an electoral system. Failing this, the power holders will feel no pressure to implement the state constitution.

實際上，世界上每個國家的政府都是不願意實施憲法的，但民主國家的政府不得不實施憲法，最終是因為有選票，不實施憲法的話會得罪太多的選民，領導人當選了也會下台。但如果沒有真正的選舉，政府不用對公民負責，不實施憲法也沒有什麼後果。

所以要實施憲法，首先要解決的問題就是選舉；如果落實不了選舉的話，政府就沒有實施憲法的壓力。

Initium: Another issue of interest to us pertains to ‘the rule of law’, something that is being extravagantly promoted in China. Not only is ‘the rule of law’ now enshrined in the Core Socialist Value System, Xi Jinping himself places considerable emphasis on what he calls ‘the comprehensive rule of law’. All of that notwithstanding, it would seem that what China means by ‘the rule of law’ is very much at variance with our understanding of the concept — one that affirms such things as constitutional rule, strict limits on the powers of the government and the protection of the basic rights of citizens. In China, however, ‘the rule of law’ is about promoting the leadership of the Party. What is your understanding of this new definition of ‘the rule of law’?

端：還有一個問題，就是現在中國把「法治」捧得非常高，不僅把它作為社會主義核心價值觀中的一個，而且習近平也特別強調「全面依法治國」。但中國的「法治」和我們一般理解的「法治」似乎有很大的不同，一般理解的「法治」講的是憲政，限制政府權力、保護公民權利，但中國的「法治」則是強調黨的領導。您怎麼看待中國這種重新定義「法治」的做法？

Zhang: Everyone has their own rational self-interest. Just as every government sees things in terms of their own logic, so too so ordinary people. These two ‘logics’ are not necessarily commensurate, therefore the question is: how does one bring them into some sort of alignment?

Here again the answer is: the ballot box! These disparate logics — that of the citizenry versus that of the power-holders — can only be brought into meaningful alignment if there is a mechanism by which the Ruling Party and the Government feel beholden to a majority of voters. If no such commensurability exists, it is inevitable that one kind of logic will run roughshod over the other.

張：任何人都是理性自私的，任何一個國家的政府都有自己一套邏輯，而普羅大眾們也有他們的一套邏輯。這兩套邏輯不一定一樣，怎麼連接起來呢？還是靠選票。只有讓執政黨和政府對多數選民負責，才有一個機制可以把兩套邏輯連接起來。如果沒有連接起來，那麼就一定是一套邏輯壓倒另一套邏輯。

That brings us back to the matter of elections. If there are no meaningful elections the power-holders can say and do as they wish without fearing any political repercussions. Of course, such a path of action may well be the harbinger of serious social consequences, like those seen in the recent scandal involving food safety at Number Seven Developmental High School in Chengdu, Sichuan province. The authorities didn’t arrest the people who created the problem, rather they detained those who had reported it. The parents who took to the streets to protest were accused of spreading rumours that threatened social stability and were detained as a result.

When something goes awry, of course it is much easier to shut people up instead of confronting and resolving the problem itself. But do they really believe that everything can be dealt with like that? If the answer is in the affirmative then isn’t governing a country reduced to being rather a simple matter? And, were it really so simple, then, wouldn’t it therefore be the case that anyone if fit to grab power, not just you.

所以又回到選舉問題。沒有真正意義的選舉，當權者說什麼那就是什麼，反正對它不會有什麼政治後果。但這樣可能會帶來嚴重的社會後果，例如成都七中實驗學校的食品安全出了嚴重問題，不抓製造問題的人，反而把反映問題的人抓了。家長上街抗議，他就說你造謠、影響社會穩定，把你抓起來。出了問題不是解決問題，而是把人的嘴堵上，倒是簡單。但是不是所有的事情都可以通過這種方式解決呢？如果是的話，那是不是掌權也太容易了呢？如果這麼容易的話，那是不是誰都可以來掌權，為什麼只能是你呢？

 

Can the Stalemate between Beijing and Hong Kong
Be Resolved with a New Social Contract?
社會契約能否解決香港政治僵局

 

Initium: The political situation in Hong Kong over the past few years has been extremely unsettled. It would appear that Beijing has been more determined than ever to intervene forcibly resulting in a significant backlash from local Hong Kong people. The ‘One Country, Two Systems’ arrangement has reached an impasse and, in that context, you talk about a new Social Contract possibly providing one way out of the dilemma. Can you explain in detail what you mean by such a Social Contract? Under what conditions do you imagine that such a thing could evolve?

端：最近幾年，香港的政治局勢有很大的動盪，北京似乎正在越來越強勢地介入香港事務，而香港民間對此也有很大的反彈，一國兩制陷入了某種僵局。在解決這一僵局時，您提出了社會契約的概念。可否請您詳細闡釋一下什麼是社會契約，以及在何種情況下有可能達成社會契約呢？

Zhang: a Social Contract is not a concrete constitutional arrangement, rather it is a compact agreed among citizens about the basic nature of the polity. A consensus is reached among all those involved as to exactly what kind of nation-state is desirable and, given such a nation-state, what principles it should adhere to. Thereafter, an organisation that represents the popular will is authorised to formulate a Constitution that reflects the principles of the Social Contract. A state formed on the basis of such a process can thereby claim legitimacy.

Generally speaking, the ‘contract’ covers such things as: the basic functions expected to be performed by the state; the basic rights and freedoms of citizens that the state must treat as inviolate; the power structure of the state and how it is to be generated; and, the basic principles the state must follow when exercising power. Furthermore, drafting and amending a constitution are both processes that must respect basic stability while leaving sufficient freedom to undertake future improvements.

張：社會契約並非具體的憲法安排，而是公民和公民之間的約定，內容是關於國家的基本形態。大家在關於要建立一個什麼樣的國家、這個國家必須遵守什麼原則這些問題上形成共識，然後授權某個民意代表機構來制定一部體現契約原則的憲法，這樣產生的國家才具有政治正當性。契約內容通常包括：國家需要履行的基本職能、國家不可侵犯的基本權利與自由、國家權力結構及其產生方式、國家行使權力必須符合的基本原則。另外，制憲和修憲程序既要尊重憲法的穩定性，也要為今後的改進留下足夠自由的空間。

This is what is meant by a Social Contract in the normative sense. Empirically, for a Social Contract to be viable it is necessary to have a sizable majority of people willingly accept such a Social Contract and to act accordingly. If the group that abides by the Contract is too small, or if there are too few social groups that respect it, it won’t be viable and the society as a whole will face a law of the jungle scenario, with the majority of people caught in what is classically known as a ‘prisoner’s dilemma’. This is a situation in which although everyone is aware that a broadly supported Social Contract is the best way forward, due to the desire of individuals to pursue self-preservation people end up harming each other. That is to say, for the sake of narrow, individual gain they abandon trust and decency leading to a situation that is deleterious to everyone. That, thereby, is the source of the ‘dilemma’.

Take for instance the freedom of speech, a basic element in a social contract. It demands that, when someone’s freedom of speech is repressed, I ought to speak out on their behalf. But, if too few people are willing to speak out as well — in other words, the majority of people just a ‘free-ride’ by letting others speak up while they keep their heads down — the upshot is that nothing will change. Meanwhile, if the few who do speak out say too much they will end up being repressed. As a result, over time there will be fewer and fewer people who are willing to speak out, and everyone will be trapped in a state of repression.

這是應然意義上的社會契約。在實然意義上，一個社會需要相當多數的人自願接受社會契約並按契約原則行事，社會契約才能成氣候。如果有契約承諾的人太少，遵守契約的群體太小，社會契約就不成氣候，整個社會處於無約叢林狀態，大多數人處在各種「囚徒困境」之中——都知道社會契約好，但迫於自保、反而互害；每個人都為了自利而背信棄義，最後得到的是對每個人都最不利的後果，這就是「困境」所在。例如言論自由是一個契約原則，它要求別人的言論被打壓的時候，我要為他發聲；但如果發聲的人太少，大家都想「搭便車」，讓別人去說、自己躲在牆後，那麼個別人發聲沒用，說多了自己還會被打壓，最後的結果是發聲的人越來越少，全體人都生活在一個沒有自由的狀態。

The way out of the ‘prisoner’s dilemma’ is, over time, for people to work on fostering an awareness about the need for a contract, that there needs to be tacit understanding among citizens that everyone must go together to vote and to express themselves. If you choose to defect this time around, hoping to catch a ride on the coat-tails of others, we will collectively look down on you and, in one way or another, get you to accept the consequences of your actions. Through repeated games of this sort, perhaps over time as a ‘virtuous circle’ of reinforcement evolves, one may be able to leave the ‘prisoner’s dilemma behind’ and a suitably numerous body of people will eventually come to accept the idea of a Social Contract on that basis. If, at any point, too few people participate in the process, sanctions will have an insufficient deterrent effect.

要解決「囚徒困境」，我們要慢慢形成一種契約意識，公民之間形成一種默契，大家一起去投票，共同去發聲。如果這次你沒有去、又想搭便車，那麼我們都會很鄙視你，通過某種方式讓你承擔代價。通過重複博弈，或許這樣下去能形成一個良性循環，走出「囚徒困境」，產生一個足夠大的人群願意遵守社會契約；如果參與人數太少，制裁就沒有什麼威懾力。

Initium: Given the present state of affairs, do you really think that it’s possible for Hong Kong and the Mainland to reach an agreement about some kind of practicable Social Contract?

端：您覺得在現在狀況下，香港和大陸有可能達成某種社會契約嗎？

Zhang: One Country, Two Systems could well be regarded as just such a Social Contract. The Joint Agreement that the People’s Republic and the United Kingdom signed on to at the time stipulated that ‘one country’ was dependent upon the existence of ‘two systems’, which was itself a social contract-like arrangement. With Hong Kong’s return to the Mainland [in 1997], the British had quit the scene, but One Country, Two Systems was written into the territory’s Basic Law and the social contract that had been previously agreed upon still remained in force. To preserve that contract it was necessary for an entity to fill in the gaps in the original agreement and the most obvious entity to do that was Hong Kong itself. Prior to 1997, the UK government had represented Hong Kong, thereafter, it had to represent itself. In theory, the relationship between Hong Kong and the Central Government was supposed to be one of equality. However, given the authoritarian system in Beijing, Hong Kong has been unable to represent itself effectively in pursuit of [what was previously promised as being a] high level of autonomy and, as a result, we are faced with the present deadlock.

張：一國兩制的安排應該被視為一種社會契約，當時的聯合聲明由中英兩國政府簽訂，「一國」和「兩制」互為條件，是一種契約性安排。回歸後，英國退場，但一國兩制已進入香港基本法，契約並未失效，而要守護契約，需要有實體去填補契約方出現的空缺，最自然的選擇是香港自己。回歸前，香港由英國代表；回歸後，只能由它代表自己。因此，香港和中央政府之間應該是一種相對平等的關係。但在中央集權的體制下，港府又不能有效代表香港去爭取高度自治，形成了一個死結。

Of course, a Social Contract in the ultimate sense is not one agreed between governments or between a government and the citizenry, it is one that is based on a consensual agreement among citizens themselves. That’s why only when both a considerable number of citizens in both Hong Kong and on the Mainland share a clear consensus on the Social Contract of One Country, Two Systems, when Hong Kong people know what kind of position they are in, and know how to fight for their rights in light of that position, along with the Mainland recognising a high level of autonomy for Hong Kong, will it be possible to maintain meaningfully the One Country, Two Systems arrangement that is stipulated in the Basic Law.

當然，最終意義的社會契約其實不是在政府和政府或政府和公民之間的，而是公民和公民之間的，所以只有當大陸和香港社會都有相當多的公民對一國兩制的社會契約有清楚的共識，香港人知道自己處在什麼樣的地位，也知道如何在這個位置去爭取自己的權利，大陸人承認香港的高度自治，才能維持基本法一國兩制的契約安排。

Initium: Although the 2014 Umbrella Movement lasted seventy-nine days it still ended up being dispersed. Thereafter, the 2017 election of a new Chief Executive was still carried out in the way it had been back in 2012 [against which the Umbrella Movement had demonstrated]. Given such a glaring disparity in forces, don’t you think that it is all but impossible for Hong Kong to gain any kind of meaningful leverage?

端：但像2014年的雨傘運動，最後也是拖了79天後清場，最後2017年特首選舉的辦法還是遵循了2012年的，您會不會覺得在這種完全不對等的關係下，香港很難爭取到談判的籌碼？

Zhang: I wouldn’t say that there isn’t any: at least Hong Kong still has veto power. To return to the status quo ante is hardly a solution, but at least there hasn’t been a wholesale retreat. Given the present disadvantageous environment you could even claim that this is kind of an ‘achievement’.

張：也不能說一點沒有，香港至少還有否決的權利。回到原來的辦法當然不是理想狀態，但是至少沒有退步。在這樣不利的環境下，也算是某種「成就」吧。

Hong Kong enjoys considerably greater levels of freedom of expression than the Mainland, and there are still many outlets that people can use to speak out. Hong Kong people can also avail themselves of the various kinds of freedom allowed under the Basic Law to protect their rights. I like comparing Hong Kong to a ‘hedgehog’ since, although it too is quite small, you know that once you’ve got it riled there’s very little you can do about handling it. That’s why I think it essential for people to treat seriously the meaning of the words ‘a high level of autonomy’ within the context of the One Country, Two Systems arrangement. Otherwise, Beijing and Hong Kong will find themselves caught in a long-term stalemate.

香港的言論自由相比大陸還是很充分的，發聲的渠道多得多，香港民眾應該充分利用基本法賦予的各種自由維護自己的利益。我把香港比喻為一個「刺蝟」，雖然小，但如果不高興起來，也是很不好辦的。所以一定要認真對待一國兩制和高度自治，否則央港很容易走入僵局。

Initium: In your opinion, what’s the relationship between Hong Kong’s Basic Law and the Constitution of the People’s Republic of China?

端：在您看來，香港基本法和中國憲法的關係是什麼？

Zhang: Article 31 of the Chinese Constitution stipulates that the National People’s Congress has authority to create a Basic Law for Hong Kong, that’s it.

[Article 31 states that: ‘The state may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People’s Congress in light of the specific conditions.’ — official trans.]

In establishing a basic law the National People’s Congress has made explicit the question of sovereignty, that is to say, there is ‘One Country’ [i.e., the People’s Republic of China], while the concept of ‘Two Systems’ indicates that whereas the Chinese Constitution determines the national system overall, the Basic Law governs the actual political system that operates in Hong Kong. The Basic Law also makes quite clear how much the Centre can legitimately intervene in the affairs of Hong Kong. Over the last two decades the Basic Law has formed a mature legal system that is complete in itself and there is absolutely no need to go beyond the Basic Law when dealing with the Beijing-Hong Kong relationship.

張：憲法三十一條授權全國人大制定香港的基本法，僅此而已。全國人大制定基本法，其實已經宣示了「一國」的主權歸屬；而「兩制」恰恰表明，憲法規定的是大陸的體制，基本法規定的是香港的體制。關於中央如何對香港進行必要的干預，基本法中已經完全規定了。實施二十年後，基本法已經形成一個非常完整的法律體系，完全沒必要走到基本法之外去處理央港關係。

Initium: What do you think of the concept of ‘Comprehensive Jurisdiction’ [i.e., ‘plenary regulative power’] as outlined in the 2014 White Paper ‘The Practice of the “One Country, Two Systems” Policy in the Hong Kong Special Administrative Region’. Isn’t this in direct conflict with the idea that Hong Kong enjoys a high level of autonomy?

端：您如何看待2014年《一國兩制在香港的實踐》中提出的「全面管治權」概念？這和高度自治的原則是否衝突？

Zhang: As I previously stated, I believe that all matters pertaining to the relationship between the Centre and Hong Kong should be worked out in accordance with the Basic Law, and redress should not be sought by creating new concepts outside of the Basic Law. Whether Hong Kong should be subject to a form of ‘plenary regulative power’ [that is, the right of Beijing to interfere in local politics] or a high level of autonomy are questions that, by all rights, should only be decided on the basis of broad-based consultations with the people of Hong Kong.

張：我已經說了，一切關於一國兩制和央港關係的說法都應該回歸基本法，而不應超越基本法之外創造新概念。香港到底是實行全面管治還是高度自治，也應該在廣泛徵求香港民意基礎上再決定。

Initium: If the stance of the Centre remains so hardline, isn’t it true that Hong Kong people will find it well-nigh impossible to achieve any positive outcome?

端：但如果中央態度始終強硬，其實港人很難爭取到什麼結果？

Zhang: A Social Contract is a compact between two parties. If one party refuses to accept it, then it is indeed exceedingly hard to implement. But, as I have said, since One Country, Two Systems constitutes a social contract-like relationship, things simply won’t work if one party decides to withdraw from it unilaterally. In their ongoing relationship both parties must demonstrate a level of consensual agreement and mutual trust. Even if that stage has not yet been reached, I am of the opinion that it must still be aimed for. If both sides continue to go after each other in such an emotional fashion, that will in no way help resolve the outstanding issues at play.

張：社會契約是雙方的事情，如果一方不接受契約，確實很難實行，但既然一國兩制實際上是一種契約關係，單方面退出也不是辦法。在交往過程中，契約雙方需要有一定的共識和互信。雖然現在可能還沒到那個階段，但是我還是認為要去爭取。如果雙方都是這麼情緒化地一來一往，對於解決實質性問題沒有什麼好處。

I believe that if both parties are sincerely willing to appreciate each other’s points of view it will be possible to identify common interests. That’s because the Centre and Hong Kong are involved in what’s called a ‘coordination game’ and not a zero-sum game. In other words, the aim of the Centre is to maintain sovereignty, while Hong Kong hopes to retain a space for high-level autonomy and the integrity of their system. Given territorial integrity as a starting point, the Centre should be willing to engage in discussions [with Hong Kong]. At present it is more than likely that the Centre has a number of misconceptions regarding Hong Kong, including a belief that ever-increasing numbers of people are advocating Hong Kong independence. For their part, people in Hong Kong feel that the Centre is becoming more and more hard-line in its approach. If this situation continues, it will have a negative impact both on mutual sensibilities as well as on mutual understanding.

如果雙方都能了解對方的真實想法，共同點還是很容易找到的，因為央港博弈是一種「協調博弈」，而非零和博弈。中央的主要目標維持主權統一，香港則希望維持高度自治的空間和制度的完整性。在主權統一的基礎之上，中央應該還是願意去談的。現在，中央可能對於香港有一些誤解，好像主張港獨的人越來越多；香港則覺得中央似乎越來越強硬，這樣下去會對雙方之間的情感和認知產生負面影響。

At the moment, it seems clear that both sides need time to cool off and reassess the situation. I would hope that they will eventually be able to return to a mutually agreed starting point related to that original Social Contract. They should each put their own houses in order; the Centre should not interfere excessively in Hong Kong’s affairs, while Hong Kong should focus on managing itself and avoid generating new misunderstandings with Beijing. Both sides could, hopefully, see the benefits of compromise, as well as recognising the problems that will result from a refusal to accommodate the other side. Perhaps then they might be able to come together.

現在看來，雙方都需要時間冷靜和重新認識，希望最終能回到社會契約的基本定位上，各自管各自的事情，中央不要介入太多香港的事情，香港則把主要的精力放在本地治理，不要給對方造成誤解。雙方都要看到相互妥協所帶來的好處以及不妥協給各自帶來的麻煩，或許能夠走到一起。

Initium: Who do you think is the main party responsible for the present stalemate?

端：造成現在的僵局，您覺得責任主要在哪一方呢？

Zhang: I don’t think finger pointing will help resolve the issues at hand. The theory of Social Contracts does not deal with questions such as legal responsibility. Rather, it is concerned with results: if one party decides not to cooperate they must make a determination about what benefits or losses will be for the other party. If repeated contestation reveals that the negatives outweigh the positives then, next time around, they might decide to cooperate.

張：這個不重要，相互指責對於解決問題也沒有好處。社會契約論不談法律責任，談的是後果：如果一方選擇不合作，會給對方會帶來哪些好處、又有什麼壞處？如果重複博弈發現弊大於利，下次可能就選擇合作。

Initium: Do you really think that conditions still exist for Hong Kong and the Centre to negotiate meaningfully for a mutually agreed Social Contract?

端：您覺得現在香港和中央還有協商社會契約的條件嗎？

Zhang: There will always be such a possibility. One should point out that the Centre-Hong Kong relationship is not one determined solely by these two parties, since various external factors are also at play. Hong Kong is, after all, an international city and anything that leads to its isolation will damage its advantageous position. That will be of no benefit to the Mainland either. I believe that Hong Kong residents need to be more aware of their negotiating strengths. Just like the hedgehog, Hong Kong might be quite small but once its enraged there’s no way you’ll be able to get it to cooperate with you. Eventually, it there’s a complete loss of mutual trust then things will be very tricky indeed.

張：這種可能性永遠是存在的。當然，香港和中央的關係不只是取決於兩方，還有外界因素造成的影響。香港是國際化的都市，封閉會喪失香港原有的優勢，對大陸也沒有好處。香港居民也要意識到自己還是有一定談判能力的，就好比刺蝟，它很小，但是如果被激怒了，從此不再合作，不再互信了，那也是很麻煩的事情。

Initium: That’s all well and good, but the political situation as it has unfolded in recent years has led to many Hong Kong residents losing all hope. They might not be particularly confident in the ‘Hedgehog Effect’.

端：但近幾年的政治局勢下，很多香港人都很絕望，對「刺蝟」的影響力未必有很大的信心。

Zhang: There’s a popular saying on the Mainland: ‘There’s no worst case scenario, things can always just get worse’. If people don’t exert themselves, matters will just keep on getting worse. Compared to Mainlanders, Hong Kong residents have many more freedoms and rights. If you don’t work at it, then even the rights and freedoms you presently enjoy will be lost. That’s why I believe Hong Kong people should treasure the rights afforded them by the Basic Law and they should protect those rights through reasonable means.

張：大陸流傳一句話：沒有最糟，只有更糟。如果不爭取的話，事情永遠會變得更糟。相比於大陸，香港人其實已經享受很多自由和權利。如果你不爭取，那麼現有的權利和自由也會喪失，所以港人要珍惜基本法賦予的權利，通過合理的方式去維權。

 

China’s Changing Social and Intellectual Landscape
The Crisis of Reform and Openness
社會思潮的轉變與改革開放的危機

 

Initium: The environment for public debate on the Mainland has undergone major changes in recent years. Over time, the voice of liberals has been increasingly silenced and leftist thinking seems to have enjoyed a boost in popularity. As a Liberal Intellectual, how do you evaluate the situation?

端：最近幾年大陸的輿論環境出現了很大變化，自由主義者的聲音也變得越來越小，但同時左翼思潮似乎越來越受歡迎，作為一個自由派知識分子，您如何看待這種變化？

Zhang: Liberal voices have indeed been restricted because of greater government interference. But the individuals behind those voices haven’t disappeared, it’s just that there are fewer channels that allow them to be heard.

張：自由派的聲音變得越來越小，是因為政府管控越來越大。不過這些人都還在，並沒有消失，只是他們發聲的渠道變得更加狹窄而已。

The left-right divide in China has always been present, and the split is profound. Actually, it’s pretty much a normal state of affairs, after all you find people with different points of view in every society. But in a society that lacks the freedom of expression and where the space available even for mild criticism is under constant pressure, extreme viewpoints — be they on the left or on the right — come to take on an exaggerated significance.

Liberals need to understand better the kind of social anomie that have been created under the conditions of totalitarianism, and not simply exacerbate the problem by indulging in navel gazing. Although I don’t agree with many of the opinions of mainland Leftists, they too have the right to enjoy freedom of expression. Various perspectives on social issues have the right to exist, I just don’t agree with an approach that results in different groups negating each other entirely. That’s just detrimental to the development of a reasonable Social Contract, a precondition of which is mutual respect and the conscious effort to refrain from employing the machinery of the state to crush opponents. Historically speaking, and in particular over the past decade, this has become a profound problem in China.

中國的左右分野一直都是存在的，而且割裂得很厲害。本來這是很正常的事，任何社會都有不同聲音，只是言論自由的匱乏使温和批評的空間受到擠壓，極左和極右言論被放大。自由派需要認識到極權體制造成的社會割裂，不要自我封閉並加劇割裂。大陸左派的許多觀點雖然我不認同，但我認為他們有自己的言論自由。不同的社會立場都有自己的存在價值，不要因為觀念不同就相互否定，這對於形成社會契約是有害的。形成社會契約的前提就是人格上的相互尊重，而不是利用國家機器來互相壓迫。歷史上尤其最近幾十年，中國這個問題是很嚴重的。

In recent years, as the space for public expression has been further reduced — Leftists, in particular, [that is, Neo Maoists, not the tenured Marxists at state institutions like Tsinghua University] have been restricted in various ways — both left and right have suffered a similar plight and at least their relationship has not deteriorated even further. Some on the left even seem to have come to realise the importance of the freedom of expression. As things continue to unfold it may even be possible that the two groups will come to some kind of consensus understanding regarding the value of free expression. The indiscriminate repression of public expression may well contribute, to a certain extent, to an evolving social consensus [on this subject].

近幾年，隨着言論空間的壓縮，尤其是左派的言論也受到了不同程度的打壓，左右兩派有點同病相憐，至少關係沒有惡化。有的左派似乎也意識到了言論自由的重要性。繼續下去，左右或可在言論自由這點上達成共識。某種程度上，無區別壓制言論反而促進了大陸社會契約的形成。

That’s not to say the distance between these two camps is not enormous; the way ahead will inevitably be very tortuous. The views held by many mainland Leftists are the direct product of post-totalitarian limits on free speech and the news media. Take the question of how you evaluate the Cultural Revolution, for example. There should be no fundamental disagreement about it but, because there is a ban on publishing overt critiques of the period, numerous young people end up believing that the Cultural Revolution was a marvellous and positive historical episode. It’s hard to challenge perceptions like that; the only way to address them is by marshaling evidence and engaging in rational discussion and fact-based persuasion. Generally, I feel that [contending schools of thought] on the Mainland require a period of calm reflection, only then can they hope to be open-minded enough so, at least, they don’t express their differences by resorting to name-calling.

當然，差距還是很大的，道路也會很坎坷。大陸很多左派所持的觀點其實是後極權體制對言論和新聞管控的一個結果，比如對文革的評價，這本身不應該成為一個問題，但因為禁止發表批評，很多年輕人把文革當做一個偉大的歷史事件。這種狀態一時難以改變，只能通過擺事實、講道理去理性說服。我覺得大陸需要進入一個冷靜期，雙方都能保持一個開放的思維，至少不要因為觀點不同就訴諸人身攻擊。

Initium: This year 2019 marks four decades since the normalisation of diplomatic relations between the People’s Republic of China and the United States. It’s an anniversary that comes at a very delicate moment in the bilateral relationship. Some people believe that the kind of political foundations underpinning the past forty years no longer exist. This in itself would seem to have created a profound crisis in continuing the Reform and Openness policies themselves.

端：今年是中美建交四十年，但中美關係處於一個非常微妙的時期。有人認為維持中美關係過去四十年正常交往的政治基礎已經蕩然無存，這也給中國的改革開放造成了很大的危機。

Zhang: There’s no doubt that the forty years of China’s reforms benefitted from a [relatively] benign international environment. It was an era in which mainstream international civilisation [that is an international community of relatively like-minded nations] was relatively stable and peaceful, and on the whole well-disposed towards China.

Following the Second World War the superiority of Western liberal democracy was gradually validated and, by the 1970s and 80s, people could see for themselves the vast disparities between societies under different political systems. Liberal democracy became the unstoppable main trend of modern global civilisation. That, too, was in fact the starting point for China’s own Reform and Openness policies from 1978, and they unfolded in concord with this mainstream, what was called ‘feeling stones to cross the river’ [as the Party leader Chen Yun put it].

In retrospect, however, it is now evident that despite the changes over the past four decades economic development does not necessary engender political reform. In the 1980s, even when there were no stones to feel for, the river still had to be crossed. But today, they’ve given up on crossing the river at all. [They — the Communists — believe in that line in Mao’s 1934 poem ‘Huichang’ which says:] ‘The scenery here is exceptionally beautiful’; even more so, there are those who think that the ‘China Model’ should be promoted worldwide. For their part, Western nations have also recognise this state of affairs and that’s why their attitude [towards China] has changed markedly. They have concluded that if the political system doesn’t change China will constitute an enormous threat.

張：中國四十年改革開放的成就確實得益於良好的國際環境，國際主流文明總體上比較安定和平，對中國也比較友善。二戰結束後，自由民主制度的優勢逐漸體現出來。到上世紀七、八十年代，人們已經看到不同的政治體制確實會造成天壤之別，自由民主從此成為不可逆轉的世界文明主流。中國1978年的改革開放也是以此為出發點，順着這個方向，「摸着石頭過河。」但改了幾十年後回過頭看，發現經濟改革並不一定會帶來政治改革。八十年代是摸不着石頭，河還是要過的；今天索性不過河了，「風景這邊獨好」，甚至要把「中國模式」向全世界推廣。西方國家也意識到了這點，所以態度發生了很大轉變，認為中國如果不改革制度，會是一個巨大的威脅。

Returning to us, however — regardless of how the relationship between China and the rest of the world unfolds — our reforms are, first and foremost, about making things better for ourselves. It is only with political reform that our own civic rights can be vouchsafed; only with political reform will democracy and the rule of law advance in China. You could think of China’s present political system as being like a particular chunk of ‘Thick Ice’ that was thrown up during the global ‘Ice Age’ in the wake of two world wars. The Ice Age itself has long since passed and the warming currents of global civilisation are liberal democracy.

I recall Marshal Ye Jianying’s remark following the overthrow of the ‘Gang of Four’ [in October 1976, shortly after Mao’s death, Ye having masterminded the military coup d’état against the ‘Gang’] that ‘The ice shelf has been cracked and a channel has opened up’. He was right: over the past four decades there has been a constant ‘heat exchange’ between that warm ocean current and the hardened ice. Of course, there will be ongoing frictions and liberal democracies will continue to be bedevilled by such issues as immigration, populism and polarisation. Although there will be turbulence I don’t think there will be fundamental dangers; even as the social contract may be broken, so too will it be reconstituted.

If, in the years to come, we continue to live in a relatively mild international environment, I am confident that the warming oceanic current of global civilisation will eventually melt even the most obdurate ice.

但回到我們自己，不論中國和世界的關係如何，中國改革首先是為了我們自己好。只有政治改革才能使我們自己的公民權利得到更好的保障，民主法治得到實質性的推動。中國現體制可以被視為兩次世界大戰的國際「冰河期」形成的一塊堅冰。現在冰河早已融化，世界主流文明一直處於自由民主的暖流中。記得剛打倒「四人幫」的時候，葉劍英就說過「堅冰已經打破，航道已經開通」。此言不虛，四十年改革開放其實就是暖流和堅冰的「熱交換」過程。當然，摩擦還會不斷髮生，自由民主國家也會遇到移民、民粹、兩極分化等問題的困擾，但是應該會有驚無險，社會契約即便破裂也會修復。如果今後若干年我們仍然處在一個温暖的國際大環境下，我相信世界文明暖流最終會化解每一塊堅冰。

***

Source:

• Qi Zhenyu 戚振宇 (special correspondent) and Fu Yuxin 符雨欣 (Initium journalist), ‘An Interview with Zhang Qianfan, a Specialist in Constitutional Law: Eventually, Climate Change Will Melt China’s Ice-hard System’ 專訪憲法學者張千帆：憲政文明的暖流會融化中國體制的堅冰, Initium Media 端傳媒, 16 April 2019

Related Material:

• Ding Xiaodong, ‘Law According to the Chinese Communist Party: Constitutionalism and Socialist Rule of Law‘, Modern China, 2017, vol.43 (3): 322-352
• Ewan Smith, ‘The Rule of Law Doctrine of the Politburo’, The China Journal, no. 79 (January 2018): 40-61
• Susan Trevaskes, ‘A Law Unto Itself: Chinese Communist Party Leadership and Yifa zhiguo in the Xi Era‘, Modern China, 2018, vol.44 (4): 347–373
• Zhang Qianfan, 张千帆, ‘The 1911 Revolution and the Chinese Constitution’ 辛亥革命与中国宪政, a lecture presented on 27 September 2011 and published on 4 December 2012
• Zhang Qianfan’s Celebrated Appeal to the Communist Party to Persist with the Process of Reform, 张千帆呼吁中共改革演讲风靡中国网, YouTube, 2012