The blind sage talks constitutionalism

“The law is optional. Those in power use it when it suits them and ignore it when it doesn’t.”

Sound familiar? These words could be describing South Africa, but the context is China. The speaker is Chinese dissident Chen Guangcheng, the blind self-taught activist lawyer who sought refuge at the US embassy in Beijing last April and was then allowed to leave China for the US. He is now studying at New York University. He spoke at the National Cathedral in Washington DC last week in a programme: “In Search of China’s Soul: Money, Politics, and the Pressure for Social Change.”

Many times during the programme, this South African listened to the analyses of the Chinese situation and heard inferences to South Africa.

The circumstances of the two countries are totally different. Yet there are some suggestive parallels and juxtapositions. People of both countries are yearning for leadership with integrity and the moral courage to project long-term vision. Leadership in both countries is presently increasingly out of touch with the everyday reality of their people and they aren’t coming forward with solutions that would alleviate people’s struggles.

Speaking of China’s Communist Party leaders, Chen offered that “talking doesn’t count, it’s what they actually do”. Chen described them as “being leaders in name only”. Rather, he suggested, they are “the nation’s kidnappers”.

Dorinda Elliott of Condé Nast Traveler, a panellist that night, noted how Chinese leaders and their families have become very wealthy. Maybe some were not personally corrupt, but the current system had allowed Communist Party leaders to acquire incredible familial wealth. Vested interests could explain the reluctance to embrace change.

Cheng Li of the Brookings Institution, another panellist, introduced a profound metaphor for China: A pilot makes the proverbial mid-flight announcement, noting there is both good news and bad news. The good news is that the flight is ahead of schedule, while the bad news is they are lost.

As a country, China has become rich. But its population has benefited very unevenly from its remarkable economic growth and income inequality continues to widen. Hundreds of millions of people are still desperately poor. The Chinese Communist Party has maintained legitimacy through on-going economic growth, while governing in a brittle, oppressive, Leninist style. The emerging middle class is now pressing for institutional change. Yet the Chinese government has shown to be unwilling to engage in political reform.

The South African interpretation of the inflight metaphor would be that we are behind schedule, plus we are lost. We are behind in growing our economy, and we have no long-term vision. Most South Africans have experienced completely insufficient socio-economic improvement and inequality is growing. Our crisis of legitimacy arises because the ANC leadership has mainly looked out for itself.

Chen offers China a way out of its quandary — constitutionalism. Chen’s essential point is that the Chinese Communist Party does not follow its own laws. He says “the law is nothing more than empty words on scraps of paper” and he accuses the government of flagrantly violating its own laws. The problem is especially acute at the local level. He urges government instead to follow the rule of law and respect human rights. He does not have high expectations for Xi Jinping’s new leadership since “survival of the Chinese Communist Party has always been more important than human rights”.

Despite the dire situation now, Chen is ultimately optimistic for China. He believes the Chinese will seek and demand the values that are universal to us all. In the long run, he imagines a China under constitutional government and a society under the rule of law. He just hopes “it won’t take too long”.

Perhaps Chen is naïve in believing that China can evolve peacefully if it only followed its own laws. China has been ruled by imperial diktat for millennia and it has a weak tradition of rule by law. The glue that held Chinese civilisation together through past centuries has been Confucianism, with its strict hierarchy of relationships and mutual obligations.

In South Africa’s case, embrace of constitutionalism would change our present dynamic and get us back on course to a better future. Due to our horrible history with its distorted rule by law and grotesque record of human-rights abuses, refocusing on constitutionalism may offer a constructive way forward.

This is South Africa’s challenge: our laws need to be applied equally to all. The law cannot be “optional” for those in power. As with China, there cannot be two standards to the law: one for those in power and another for those who aren’t. If we really followed constitutionalism, as Chen advocates for China, South Africa would regain its bearings and no longer be lost — although we would still be behind schedule.