In addition, in keeping with the tradition of each Chinese leader leaving his mark
on the Constitution, Chairman Jiang Zemin’s theory of the Three Represents made
the preamble.^22 This theory provided ideological coverage for inclusion of the
business class (“advanced productive forces”). It seems quite plausible that a future
amendment will incorporate the latest formula of the Harmonious Society that is
the mark of the previous leadership.
The Constitution matters for the citizenry too. The widely discussed Sun
Zhigang incident, in which a constitutional challenge led to the repeal of the
system of detention and repatriation in the wake of a student’s death in custody,
shows the symbolic power of the Constitution.^23 Other groups and individuals have
sought to wield the Constitution in particular struggles over property rights, labor
rights, and health care.^24 It is poignantly captured in images, such as the story
Zhang tells of an old man wielding the Constitution to resist his eviction.^25 We thus
have a vibrant and vigorous Constitutional discourse, wholly apart from legal
enforceability or efficacy in individual cases.
Arguably, this process is distinct from that we observe in the more conventional
democracies in that it is more based on popular will than on elite institutions.
As Balme and Dowdle put it,
Although perhaps initially conceived of by China’s leadership as a
top-down exercise in social management, legal reform is now interact-
ing with the public and the grassroots in ways that are outside of
such political control...it is a process that has become markedly
bottom-up – driven by the dynamics of social participation.^26
Unlike the top-down constitutionalism that emerged in Japan and its later colonies,
the Chinese process is one now in the hands of the people themselves, who lack
more conventional means of political participation. Constitutional discourse is a
substitute for democratic discourse, and is at once both stunted and dynamic.
The Vietnamese leadership too has shown some attention to constitutional
matters.^27 It undertook amendments in 2001 to introduce the concept of the
(^22) The Three Represents theory provided that the Communist Party should represent
“advanced productive forces, the orientation of the development of China’s advanced
culture, and the fundamental interests of the overwhelming majority of the people in
China.” This is read as providing for inclusion of the new capitalist classes, development of
culture, and some theory of political representation.
(^23) Keith Hand, “Citizens engage the constitution: theSun Zhigangincident and consti-
tutional review proposals in the People’s Republic of China,” in Balme and Dowdle,
Building Constitutionalism in China,p. 221.
(^24) Zhang, “A constitution without constitutionalism?” (^25) Ibid.
(^26) Stephanie Balme and Michael Dowdle, “Introduction: exploring for constitutionalism in
21 st century China,” in Balme and Dowdle,Building Constitutionalism in China,p. 1 at 13.
(^27) Ngoc Son Bui, “Constitutional developments in Vietnam,” paper presented for Fourth
Asian Constitutional Law Forum, Hong Kong University, December 2011.