Micheline Tusenius
Micheline Tusenius

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.

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    • ntozakhona

      South Africa does have a long term vision and it is called the National Development Plan and there has always been the Freedom Charter that outlined our main principle. The South African constitutional court and Chapter 9 institutions are empowered to ensure that our laws apply equally to all. In fact the presidents of South Arica probably hold the highest record of being hauled before the courts.

      You will hardly find in the US members of the legislature who share the same living space with the poor as is the case with ANC MPs. Senators and Congress members belong to the class of the super rich. There is less inequality in China than in the US and more protests against the system in Washington than in Beijing.

      It is good that you are able to compose an essay but please back up your statements with evidence not just emotions arising out of dissapointment that your favourite party does not appeal to the SA voter. The ANC has been hailed by no less than the UN Secretary General as the embodiment of progress an unusual step of a political party been hailed by the UN

    • bernpm

      @Ntoakhona: “…In fact the presidents of South Arica probably hold the highest record of being hauled before the courts…..” often with very little results.

      Recommended literature: “Zuma exposed” by Basson.

      Reads like a telephone book of interrelated corrupt individuals with Mr Zuma in their middle. Although….Many other countries do have their own ring of corruptions…even innocent activities such as cricket, soccer and bicycle racing.

    • The Creator

      Well, yes, but isn’t that the problem with the article? Constitutionalism means laws which are to be interpreted by judges and lawyers. Given the way they favoured Zuma there is no reason to trust judges and lawyers to interpret the Constitution in support of honesty and social need.

      The Soviet Union under Stalin had a really wonderful Constitution, just like the PRC. Essentially, what Chen wants is to take power away from the Communist Party and hand it over to big business. Looking at what’s happened elsewhere in Asia, I’m not convinced that this will lead to an improvement. It certainly hasn’t improved matters in South Africa.

    • ntozakhona

      bernpn

      There are probably different interpretations why there are little or in fact no damning results. The legal one being that there iss no evidence. There are desperate and vindictive wealthy elements in our society hell bent on humiliating our presidency and sadly for them the judges had international reputations to consider and have refused to be party to such.

      However the point is that all are equal before the law and chances are that if you are president you will be exposed more to the rule of law.

    • ntozakhona

      ps If I were to regard Basson as aothority on Zuma I might as well regard the late Eugene Terreblanche and the AfriForum as an authority on non-racialism

    • bernpm

      @ntozakhona:”ps If I were to regard Basson as aothority on Zuma I might as well regard the late Eugene Terreblanche and the AfriForum as an authority on non-racialism”.

      Yes, you’re right. Eugene was an expert on the matter, Afriforum do have their experts on the matter.
      Basson might not be an expert on the person “Zuma” (who is?) but sure seems to know a lot about his “friends” and many of his dealings.

    • -Sterling Ferguson

      @Ntozakhona, if Obama had taken state money and spent it on his home in the US, Congress in both parties would have impeached him. The US Congress would have been able to do this because they are elected by the people and not appointed. You do not have a democracy in SA because the people have no voice in the government.

    • ntozakhona

      The Creator

      Desperation does show, which judges are you referring to? The ones that didmissed the dexision of the president as irrational? The ones Zille always threatens to run to everytime she loses a poltical battle?

    • -Sterling Ferguson

      @Ntozakhona, the NDP is like China’s great leap forward and it will never get off the ground. There is a book called the “Black Swan”, it’s about events that can happen that can throw your plan in a tailspin.

    • ntozakhona

      Sterling Ferguson

      I have repeatedly asked you to explain how your form of democracy ( first past the post) is not going to wipe out minority parties. You allege you answered somehere yet you are able to repeat the SA is not a democracy mantra in every post.

      Do you mind providing some substance to your English loqouciousness?

    • ntozakhona

      Ps Which China are you referring to ? The one China known by all has taken 30m people out of poverty and is a recognised economic giant.

    • -Sterling Ferguson

      @Ntzakhona, democracy means for the people and by the people a country’s democracy doesn’t exist to protect the parties. In the marketplaces of ideas the people have right to vote for the people that they feel have the best ideas to govern the country. In SA whether it’s the DA or the ANC, the people don’t have a voice in electing the people to office and holding them accountable. If the people don’t like the job the mayor of your city is doing, the people should have a right to vote that person out of office. Do you know the member of parliament that is supposed to represent you in parliament?

      This government was set up in 1994 to give the people a weak voice in the government so the radical element like Memela couldn’t take over the government. Mandela in his book has stated that the people in Africa were too poor and uneducated to have a type of government like I described above. About three months ago the speaker of parliament has gone on record as saying the same thing when he was asked about giving the people a voice in electing members to parliament.

      Finally, SA isn’t the only country that had a fake democracy, the US for a long time was the same way. Lincoln in a debate said the US couldn’t call herself a free country when million of people were in bondage (slaves).

    • -Sterling Ferguson

      @Ntazkhona, the China I am talking about under Chairman Mao had a great leap forward and million of people died from starvation. China has almost a one and half billion people and during the best of times, she can’t feed all of those people. China had a hostile policy toward the US and when she changes her policy, the US opens her doors for trade.

      I know you and some of you BRICS people in SA have been running around with a hostile policy toward the US but, the N America market is the richest in the world. SA should be trying to get her share of trade with the US to build up her economy like China and Brazil. The people in SA should beat the Asians to the US shores to sell their goods in this country to build the economy of SA.

    • ntozakhona

      Sterling Fergurson

      Again, again and again, I have read and understood the type of democracy you would like to have for SA. You still have, in your long winded repetition, not explained how the first past the post system is not going to wipe out minority parties icluding your noisy DA.

    • ntozakhona

      Ferguson

      Eish, simply reread what you have written about China and see how much you contradict yourself