A constitution without constitutionalism? The paths of constitutional development in China

Abstract

This article will focus on the recent constitutional developments in China along two paths. One is the official path initiated by the Supreme People's Court's judicial interpretation for the Qi Yuling case in 2001, which opened up the possibility, met with enormous enthusiasm, for the judicial application of the 1982 Constitution. The other is the unofficial, populist path symbolized by the Sun Zhigang incident in 2003, when the public, for the first time since 1989, expressed strong protest largely via the internet against the mischief of a local government. The article will review the key constitutional developments achieved along both lines and will examine the causes of their successes or failures. Finally, it will point out the inherent limitations in a populist path toward constitutionalism when pursued within an institutional structure where governments at various levels view the Constitution more as a threat to the status quo pertaining to a small minority than as a protection of basic rights for all. © The Author 2010. Oxford University Press and New York University School of Law. All rights reserved.