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?
Tsinghua Should Learn How to
Treat its Academic Talent Properly
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.
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’.
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.
[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.
The refusal of one decent man
outweighs the acquiescence of the multitude.
[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.
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?
- 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:
- 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];
- 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
- 网络上传出的消息, 《中国禁闻罔》, 28 March 2019
- 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.
— ‘Gaozi, Book VI, Part I, Chapter 7’
The Works of Mencius《孟子 · 告子上》
trans. James Legge
Eventually, Political Climate Change
Will Melt China’s Ice-bound System
An Interview with Zhang Qianfan
Professor of Constitutional Law
Reported by Qi Zhenyuand Fu Yuxin
Translated by Geremie R. Barmé
— Zhang Qianfan
16 April 2019
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.
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.
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.]
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.
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.
Constitutional Conundrums Under the Party-State
Initium: What is your view of the relationship between the Constitution of the Chinese Communist Party and China’s National Constitution?
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.
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.
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.
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.
Initium: But, in reality, is it not the case that the National Constitution has always been subordinate to the Communist Party’s Constitution?
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.
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.
[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]?
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.]
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.
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.
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.
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?
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.
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.
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.
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.
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.
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’?
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.
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.
Can the Stalemate between Beijing and Hong Kong
Be Resolved with a New Social Contract?
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?
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.
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.
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.
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?
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.
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.
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?
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’.
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.
Initium: In your opinion, what’s the relationship between Hong Kong’s Basic Law and the Constitution of the People’s Republic of China?
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.
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?
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.
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?
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.
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.
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.
Initium: Who do you think is the main party responsible for the present stalemate?
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.
Initium: Do you really think that conditions still exist for Hong Kong and the Centre to negotiate meaningfully for a mutually agreed Social Contract?
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.
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’.
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.
China’s Changing Social and Intellectual Landscape
The Crisis of Reform and Openness
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?
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.
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.
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].
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.
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.
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.
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.
- Qi Zhenyu 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(special correspondent) and Fu Yuxin (Initium journalist), ‘An Interview with Zhang Qianfan, a Specialist in Constitutional Law: Eventually, Climate Change Will Melt China’s Ice-hard System’
- 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