This is an interesting read. Chinese author, pastor, lawyer Mr. Wang Yi analyzes Western Constitutionalism and compares it with ancient Chinese political traditions, to provide a basis for implementing Constitutionalism in future China.
The author speaks of first of all, that the executive power & legislative powers are in fact one, rather than 2 distinct powers. Therefore, rather than 3 branches of government as operated in the U.S. government (as in Montesquieu’s political theory), it is in fact only 2 branches of powers that exist. The legislative and the executive are merely two internal working mechanisms of the one “ruling” Kingly power, rather than 2. In the example of the U.S., these two mechanisms provides checks and balances on each other, but they are not 2 distinct powers strictly speaking. That is true, in that, there is in fact much confluence of the two in the operations of the U.S. Government, e.g. federal agencies of the executive branches are delegated legislative-like powers to establish regulations and rules that are legally binding.
Rev. Yi then continues to talk about “Constitutionalism” in ancient Chinese Context, and how “constitutionalism” is not merely a western invention, but that Chinese ancient Pre-Zhou-Dynasty Priesthood had similar restrictive power on the kings, and the Post-Zhou Ancient Confucius intellectual ruling elites had similar power checks on the emperors. In another word, ancient Chinese “Constitutionalism,” if you will (I use the term rather freely), is in fact consistent with Western constitutionalism in terms of operation.
We must recognize the differences, however, first that “Chinese Constitutionalism” in ancient context was not formally institutionalized. Namely, there were no formal mechanisms in play for the checks and balance of power in ancient China. However, in the case of Confucius ruling elites, they did in fact exert certain restrictive power on the opinions and decisions of the emperors. Confucius Elites established a budding mechanism for institutionalization. Regrettably, this “budding constitutionalism” was totally destroyed after the 1949 Communist takeover of Mainland China. Secondly, Western Constitutionalism is individualistic which stresses individual freedom, but Chinese Constitutionalism is at best family/clan-based. Even though this is very different from the Western individualistic value, the family/clan based still to some extent provided legitimacy for protecting citizens in the court of law.
I am sure there are people who would consider such a comparison far-fetched. But if we recognize the 2 essential (rather than 3) powers exist in modern governments, the Kingly Power to Rule, and the Judicial power that reviews the constitutionality of the rules and regulations of the executive and legislative branches of government. it is not too far-fetched to compare Western Constitutionalism with that of ancient China. Constitutionalism is in fact deeply embedded in Chinese political tradition!! It is not foreign!! The import of this is that it provides a legitimate basis for modern Chinese Constitutionalism to be realized, even in the face of recent opposition from the out-going Chinese leader Hu Jintao who repeatedly stressed that China will not adopt the “evil ways of Western Constitutionalism”（不走西方憲政的邪路）.
As Rev. Wang Yi discussed, Constitutionalism – separation, checks and balance of powers – had long existed in ancient Chinese political tradition, albeit not in the formal institutionalized sense. The autocratic rule that mixes the Judicial Review Power and that of the Legislative/Executive Kingly power which results in autocratic rule is actually a rarity in Chinese history, rather than the norm. In that sense, it is fair to say, the post-1949 political regime of China is in fact walking in “evil ways.” Then, we must begin to wonder, who then needs to be corrected at first place?
Does the conclusion of this discussion mean that we should to revert and continue the Confucius Constitutionalism that was abruptly interrupted? My personal humble opinion is that, the so-called Confucius Constitutionalism does not provide adequate formal mechanisms for the protection of rights of individuals, nor does it adequately curbs the power of the ruling elites.
As to how contemporary Chinese constitutionalism would eventually be shaped, we first must recognize the valuable political traditions of ancient China that provides a foundation for modern Chinese Constitutionalism. Secondly, China must also refer to the history of Western Constitutionalism for reference and guidance for shaping the path to its own Constitutionalism catered to the Chinese Culture and changing demographics of contemporary China. Contemporary Chinese intellectuals faces uniquely huge challenges, and at the same time, unprecedented opportunities to shape the future of a nation and a people.
For Rev. Wang Yi’s Chinese article please refer to http://blog.boxun.com/hero/wangyi/92_1.shtml