Chen Duanhong, "National Security and the Constitution"

Chen Duanhong, “2020 National Constitution Day Symposium Keynote Speech: National Security and the Constitution,” [1] December 4, 2020, Hong Kong SAR

Introduction and Translation by David Ownby

Introduction

The year 2020, an annus horribilis if ever there was one, will be most remembered for the coronavirus pandemic that swept the globe, but what Jeff Wasserstrom has called the death of democracy in Hong Kong was surely a tragedy as well.  After months, even years, of massive pro-democracy demonstrations and increasingly violent confrontations with authorities—provoked, many insisted, by police brutality—everything came to an end in May, when the Standing Committee of China’s National People’s Congress imposed a national security law on the Hong Kong Special Administrative Region. 

​The subsequent arrest and imprisonment of democracy activists like Joshua Wong and China critics like Apple Daily publisher Jimmy Lai are not isolated events intended to “frighten the monkey by killing the chicken,” but instead announce China’s intention to fundamentally transform Hong Kong’s political culture.  An excellent chronicle of the events leading up to China’s intervention can be found in Sebastian Veg’s commentaries.  Another guide to what is happening beyond the headlines is Antony Dapiran’s newsletter, “A Procrastination.”

Western media have generally portrayed the Hong Kong drama in Cold War terms, valiant forces of democracy vying against creeping tentacles of Communist totalitarianism, which of course is not without elements of truth.  At the same time, this black and white picture is an over-simplification, ignoring early hopes that the “tail might wag the dog” (i.e., that China in reform and opening mode might move in the direction of a rules-based authoritarianism akin to Hong Kong’s colonial order), as well as the genuine difficulties of making “one country-two systems” work. 

The entire history, which is beyond the scope of this brief introduction, is surely full of missed signals and bungling, as well as perfidy and bad faith.  The text translated here illustrates how one influential Mainland intellectual chooses to tell the story.  A translation of a text on the same subject by Chen’s colleague Jiang Shigong is available here.  I should hasten to add, to avoid any misunderstanding, that I do not share their views at all.

Chen Duanhong (b. 1966) is a professor at the Peking University Faculty of Law, and his chief intellectual focus is on constitutional issues, as one can see by visiting his Aisixiang page.  Chen is one of many New Left intellectuals in China to have been influenced by the ideas of Carl Schmitt (1888-1985), the German critic of liberal constitutionalism commonly referred to as “Hitler’s crown jurist” for his service to the Nazi regime.  Schmitt’s thought is complex (for a brief, if thorough overview, see here), but for our purposes can be reduced to two essential points:  any legal, constitutional order requires a sovereign to function properly; and the point of politics is to win, victories being achieved by distinguishing friends from enemies. 

Schmitt’s original ideas emerged in the context of the decline and fall of the Weimar Republic, and have been recycled by various critics of liberalism, from both the right and the left (and by a certain American president who surely never read the German jurist, but whose political reflexes naturally tend toward the Schmittian).  In China, interest in Schmitt began in the 1990s, when the fall of the USSR, and fears that China might suffer the same fate, fueled the search for a new and improved authoritarianism, and the main propagators of Schmitt’s theories have been New Left intellectuals (on Schmitt in China, see Veg, Reinhardt, and Chang, among others). 

The appeal in the Chinese context is obvious:  in the 1990s, China’s “side” appeared to be losing, which meant that the Chinese people should unify and rally around the “sovereign,” i.e., the CCP and/or its leader.  China’s later rise to great power status calmed fears that China might fall apart, but Schmitt’s ideas remain useful for those who defend of the unique “China model” or “Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era” in the face of Western criticism.

Much of Chen Duanhong’s work has been devoted to defending the idea of China’s unwritten constitution, in a sense advocating the power and authority of the “sovereign” over the formal law as inscribed in the actual document.  While such work by its nature is abstract and ideological, the Hong Kong issue gave Chen something much meatier to sink his teeth into.  The text translated below is in fact a speech (video available here), a keynote address delivered at the “2020 Constitution Day Seminar,” held on December 4, 2020, in Hong Kong.  “Constitution Day” is a newly invented occasion, created by the Standing Committee of the NPC in 2014 “with the aim of enhancing public awareness of the Constitution, promoting its spirit, strengthening its implementation and advancing China's overall law-based governance.”

As Sebastian Veg’s twitter-feed illustrates, Chen’s argument is a straight-forward Schmittian defense of China’s decision to impose a national security law on the Hong Kong SAR.  Following Hobbes, Chen argues that the state is a security system, necessary to guarantee the safety of the individual and the group (nation).  The sovereign creates the state, as well as the constitution, which is the “law of national self-preservation.” 

The protracted failure of SAR officials to enact appropriate security legislation (Article 23) left Hong Kong, and ultimately the Chinese nation as a whole, in a situation of precarity, in which Hong Kong people were unable to distinguish friends from enemies, resulting in years of insecurity, confrontation, and violence, justifying the “state of exception” (in this case more illusory than real) in which the Standing Committee of the National People’s Congress intervened to fulfill the function SAR authorities had been unwilling or unable to (although the actual text of the law was only published on June 30—in the interim, the law was the very definition of the sovereign in Schmittian terms, i.e., whatever Beijing wanted).

Chen illustrates the importance of sovereignty, national security, constitutional rule, and the state of exception by citing U.S. President Abraham Lincoln’s actions leading up to the Civil War, when he overrode legal niceties and Supreme Court objections to oppose the secession of the Southern states, only after which, Chen insists, did the United States truly “become a nation.”  Clearly, in Chen’s view, those advocating Hong Kong’s independence—and even those advocating Hong Kong’s political independence in the framework of the “one country-two systems” arrangement—are the equivalent of Southern secessionists, and China’s Central Authorities are the equivalent of Abraham Lincoln, who, in this instance, acted quickly enough to prevent actual warfare.  The Hong Kong people who cannot see this have forgotten that the old Hong Kong that they cherish was in fact the creation of Britain’s invasion of China’s sovereignty, a tragedy that has now been corrected.

This logic of course makes sense from Beijing’s position, in which “one country” was always more important than “two systems.”  And it is true that SAR authorities, for good reasons and bad, had dragged their feet on drafting national security legislation, leaving important ambiguities which could indeed impact national security. One cannot help but wonder, however, how this law, imposed from a distant center at a moment of crisis and in the face of considerable opposition, and used immediately and harshly to muzzle and imprison that opposition, can become a “civil religion” and inspire the “loyalty” of Hong Kong citizens.  Beijing surely felt that its choices were limited, but its intervention likely created more enemies than friends.  For a text disputing Chen’s arguments, see here.

My thanks to Sebastian Veg for suggesting these texts.

Links to other texts available on this site

Click here for texts related to the theme of constitutional rule.

Click here for texts related to the theme of democracy.

Click here for texts related to the theme of civil religion.

Favorite Quotes 

“Why do we say that the state is a security system? Although mankind has yearned for world peace and unity throughout history, our common political history tells us that the state is the only realistic means to ensure our political survival. All social contract theories have provided convincing proof of this through the rational choice model. Among these theories, Hobbes’s theory is the most thorough. Why do people form nations? The fundamental purpose is security, because, according to Hobbes, in a state of nature, ‘man finds himself in a state of war of all against all.’ How to get out of the Hobbesian jungle? It is necessary to establish a ‘common power to defend against foreign aggression and to constrain mutual encroachment on one another’s rights.’ This power is sovereignty, which is embodied in the state, which Hobbes called Leviathan.

Hobbes' theory has two logical threads. One thread is: state of war leads to state-formation leads to peace. The state of war is the starting point, state-formation is the means, and peace is the end. The other thread is: personal security leads to sovereignty leads to national security. Here, personal security is the original motivation, sovereignty is the means, and national security is the end. In short, only the state can provide overall national security, and the state is essentially a security system.”
 
“The Constitution is the law of national self-preservation, not a ‘suicide pact.’  Therefore, on the one hand, the constitutional system must be designed with the fundamental purpose of safeguarding national security; and on the other, in the process of constitutional implementation, the Constitution cannot be interpreted in ways that go against this fundamental purpose, i.e., as having connotations that are fundamentally harmful to national security.”

“Loyalty is a moral feeling and a mode of behavior in which a subject willingly identifies itself with the object and is willing to work hard and sacrifices for the object. Loyalty has a strong sense of preference and exclusivity. Loyalty to a person or an organization also means that when conflicts of interest arise between the person or organization and other people or similar organizations, he will not hesitate to choose the interest of the object of loyalty and to fight for it. It is not an exaggeration to say that exclusivity or the distinction between friend and enemy is the essence of national and constitutional loyalty. An excellent example of this is the U.S. Naturalization Oath, a five-pronged oath containing five areas of moral and legal obligation.”

Translation
 
Honored Chief Executive Carrie Lam 林鄭月娥, Honored Director Luo Huining 駱惠寧 [of the Central Government Liaison Office in HK], distinguished guests and friends, good day to you all! The theme of my report is "National Security and the Constitution".
 
When we say "national security and the constitution," this is not anodyne; the expression does not denote a simple juxtaposition of two things, but rather a strong normative connection between them. What, then, is this connection? This is the question I want to answer.
 
What is the relevance of this topic to Hong Kong? It wouldn’t hurt to start with a specific example that is well known to all. Article 23 of the Hong Kong Basic Law stipulates that Hong Kong "shall enact laws on its own" to prohibit seven types of behavior that endanger national security. This year, the Standing Committee of the National People's Congress (NPC) enacted the National Security Law of Hong Kong, which was then authorized by the NPC. The decision to authorize the law was made "in accordance with the provisions of Articles 31 and 62 of the Constitution of the People's Republic of China, Articles 2, 14 and 16, and the relevant provisions of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China.”

The relationship between the HKSAR and the Central Authorities, the relationship between the NPCSC and the NPC, and the relationship between the Hong Kong Basic Law and the Constitution are also involved here. As we all know, before and after the introduction of the Hong Kong national security law, some people abroad and in Hong Kong have accused the NPCSC of overstepping Article 23 of the Hong Kong Basic Law, infringing on Hong Kong's high degree of autonomy and undermining the judicial independence of Hong Kong.  How should we respond to such accusations? To give a complete and effective response, we should make clear the relationship between national security and the Constitution.
 
Allow me to present three theses and explain them one by one: 1) sovereign security is necessary for the vitality of the Constitution; 2) the Constitution is the law of national self-preservation; and 3) constitutional loyalty is the source of strength for national security. These three propositions express three major truths. I believe that after understanding these major truths, many doubts will be dispelled.

Sovereign security is necessary for the vitality of the Constitution

This proposition relies on two presuppositions: 1) the state is a security system; 2) the validity and vitality of the constitution are bestowed by the sovereign.

Why do we say that the state is a security system? Although mankind has yearned for world peace and unity throughout history, our common political history tells us that the state is the only realistic means to ensure our political survival. All social contract theories have provided convincing proof of this through the rational choice model. Among these theories, Hobbes’s theory is the most thorough. Why do people form nations? The fundamental purpose is security, because, according to Hobbes, in a state of nature, "man finds himself in a state of war of all against all.” How to get out of the Hobbesian jungle? It is necessary to establish a "common power to defend against foreign aggression and to constrain mutual encroachment on one another’s rights." This power is sovereignty, which is embodied in the state, which Hobbes called Leviathan.

Hobbes' theory has two logical threads. One thread is: state of war leads to state-formation leads to peace. The state of war is the starting point, state-formation is the means, and peace is the end. The other thread is: personal security leads to sovereignty leads to national security. Here, personal security is the original motivation, sovereignty is the means, and national security is the end. In short, only the state can provide overall national security, and the state is essentially a security system.
 
Some Hong Kong people may think that this argument does not conform to their life experience or that of previous generations,  and that Hong Kong should be a counter-example or an exception to this rule. For the century and more during which Britain occupied Hong Kong, many people moved from the Mainland to Hong Kong by various means, seeking safety for themselves and their families, and "borrowed" the place to make their fortunes. On the basis of this experience, some people have lost the concept of nationhood and consider themselves to be global citizens.

This is a serious misconception. First, the British occupation of Hong Kong was the result of war, and was a disaster for the Chinese nation, which from a negative perspective illustrates the importance of the state’s providing security. Second, the reason people fled to Hong Kong was because they thought at the time that Britain was stronger than China and could provide security, which affirms rather than disproves the validity of the above proposition. Third, the security of Hong Kong people under British colonial rule was not true civic security, but security lacking the status of political agency. The security of the nation as a whole is an autonomous and dignified security.
 
Why is it said that the validity and vitality of the Constitution is bestowed by the sovereign? Simply put, the constitution is a product of sovereign power, and the constitutional power is an application of sovereignty. This has become common knowledge in the age of written constitutions. As Hobbes said, sovereignty is the soul of a nation. If the security of a nation's sovereignty is in danger, the constitution must be in the same danger. It is inconceivable that a nation could lose its sovereignty and keep its constitution intact.

When some Western countries and Hong Kong's "burning together" camp 攬炒派[2] attacked Hong Kong's national security law, in conceptual terms, they separated the validity and vitality of the Hong Kong Basic Law from Chinese sovereignty, and even set the two up as antagonistic. This is poor reasoning, and the essence of it is Hong Kong independence. It should be noted that the moment the state resumed the exercise of sovereignty over Hong Kong, the entire legal system of Hong Kong switched its source of validity, this new source is the sovereign will of China, and Article 31 of the Constitution[3] was the switch (literally, “converter 轉換插頭”). "The laws previously in force in Hong Kong shall remain basically unchanged" is also a sovereign decision in itself. Therefore, the rule of law in Hong Kong after the retrocession should be the law of the new Constitution, which is closely related to national security.

The Constitution is the law of national self-preservation

The original meaning of the word "constitution" in English refers to the structure of a thing. It has long been a positive word when describing a political regime, like when we say a person is well-developed and healthy.  The standard for distinguishing a good constitution and a bad one is twofold: whether the country is safe and whether the people are free.
 
The Constitution is the law of national self-preservation, not a "suicide pact.”  Therefore, on the one hand, the constitutional system must be designed with the fundamental purpose of safeguarding national security; and on the other, in the process of constitutional implementation, the Constitution cannot be interpreted in ways that go against this fundamental purpose, i.e., as having connotations that are fundamentally harmful to national security.

The task of a constitution is to translate sovereign authority into an objective legal order, to construct a common identity on the basis of individual differences, and to construct unity on the basis of regional differences. In order to do so, the constitution-maker must declare the principle of sovereignty and create a sovereign representative body; he must define who "we the people" are, and draw a clear line between "nationals" and "foreigners;” he must draw territorial boundaries to separate them from other countries' territories; translate sovereignty into specific legal powers and delegate them to central state agencies; establish a unified citizenship, and define the basic rights and obligations of citizens; and integrate the various localities in an appropriate configuration of power.

The validity of the constitution covers the entire territory, and the reach of sovereignty defines the territory of constitutional law.  The Constitution is the supreme law, and central legislation takes precedence over local legislation. When the integrity of the nation and the territorial integrity of the state are seriously threatened, the constitution authorizes a specific body to declare a state of exception, to suspend the relevant norms of the constitution and the law, and to use all necessary means to defend the state.
 
Things are always changing, in constant evolution, and the Constitution cannot be designed to last forever. The fundamental reason for the change in the United States from the Articles of Confederation to the Federal Constitution after the achievement of independence was that the power conferred by the Articles of Confederation was too small to protect internal and external security.

Without going into an abstract discussion of how constitutional interpretation serves the purposes of national security, I would like to tell a story about the U.S. Constitution. The President prior to Abraham Lincoln was James Buchanan, and when the Southern states began to secede, he argued, with the support of legal advice from the Attorney General, that although the South had no right to secede and secession was unconstitutional, Federal authorities had no power to prevent it through coercion. 

Lincoln, a lawyer by training, came to power, defied Congressional opposition, overruled the objections of the Supreme Court, and went to war to save the United States. It was only then that United States truly became a "nation."  Some call this war a "blood redemption.” In his first Inaugural Address, delivered on March 4, 1861, Lincoln discussed in detail the constitutional reasons for opposing secession.

He began with his constitutional conviction that "Perpetuity is implied, if not expressed, in the fundamental law of all national governments." He then expressed his determination to do his utmost to enforce federal law, affirming that “Doing this I deem to be only a simple duty on my part, and I shall perform it so far as practicable unless my rightful masters, the American people, shall withhold the requisite means or in some authoritative manner direct the contrary. I trust this will not be regarded as a menace, but only as the declared purpose of the Union that it will constitutionally defend and maintain itself.” 

What does "constitutionally defend and preserve itself" mean? This phrase can be understood in two ways: first, that the Union will defend and preserve itself constitutionally; and second, that it is naturally constitutional for the Union to defend and preserve itself.
 
In the face of the Supreme Court's obstruction, he appealed directly to the sovereign:  the people. He noted, "the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
 
The concept of "one country, two systems" breaks with the classical theory of sovereignty in many ways, and the constitutional arrangement of the Hong Kong Basic Law that accords a high degree of autonomy for Hong Kong is indeed a unique phenomenon in the world's constitutional history. However, whether interpreted alone or in conjunction with the national constitution, it cannot be construed as a "law of national self-harm" or an "umbrella for the independence of Hong Kong.”
 
Constitutional loyalty is a source of strength for national security.  National security relies on many forces: human, military, and financial, but the most important is the strength that comes from the confidence of the people. In the absence of loyalty, any force may well become the enemy’s spoils.

Loyalty is the most important moral element and principle contributing to the unity of the body politic, and it is also the moral foundation of the principle of representative responsibility. Without the loyalty of citizens, there will be no political unity in the country; if the representatives are not loyal, there will be a crisis of representation.

Loyalty is a moral feeling and a mode of behavior in which a subject willingly identifies itself with the object and is willing to work hard and sacrifices for the object. Loyalty has a strong sense of preference and exclusivity. Loyalty to a person or an organization also means that when conflicts of interest arise between the person or organization and other people or similar organizations, he will not hesitate to choose the interest of the object of loyalty and to fight for it. It is not an exaggeration to say that exclusivity or the distinction between friend and enemy is the essence of national and constitutional loyalty. An excellent example of this is the U.S. Naturalization Oath, a five-pronged oath containing five areas of moral and legal obligation.

The difference between nations is not whether they require loyalty, but rather the different modes of loyalty they employ. Conversely, it is also true that different modes of loyalty produce and sustain different state forms. Throughout human political history, four major patterns of national loyalty have evolved: first, a unidirectional bottom-up structure of loyalty evolved toward a pattern with mutual loyalty among citizens as its base and the loyalty of public officials as its core; second, a multi-level composite structure evolved toward to a structure directly loyal to the sovereign; third, loyalty to a concrete person evolved toward loyalty to the abstract idea of the country and the constitution; fourth, national loyalty has risen from a state of simple obligation to one of moral freedom, i.e., a mixture of the emotion and virtue of "active freedom" and "conscious obedience.”  In short, constitutional loyalty is the universal model of political loyalty in the modern state.
 
Within the constitutional framework of "one country, two systems," the political loyalty of Chinese citizens in Hong Kong is a composite structure of loyalties: loyalty to the Hong Kong Special Administrative Region on the one hand, and a minimum level of loyalty to the state on the other, with Hong Kong's national security laws being the legal means to maintain base-line loyalty.

How can constitutional loyalty be cultivated in citizens, and especially in officials? Among man’s strong feelings, none is stronger than religious feelings, and unless the Constitution becomes a civil religion, the nation will not have the most solid emotional foundation, and it will be difficult to establish the most basic sense of unity. There will be no spiritual bond between the representative and the represented.

Once the Constitution becomes the basic text of civil religion, and the constitutional oath becomes the civil religious ritual of the republic, a theological structure will embed itself within the secular state, the force that will bring the people together.
 
It has not been forgotten that on October 12, 2016, a number of Members-elect of the Sixth Legislative Council of Hong Kong behaved in an ugly manner during the oath-taking ceremony. The Standing Committee of the NPC took the initiative in a timely manner and passed the “Standing Committee of the National People’s Congress’s Interpretation of Article 104 of the Basic Law of the Hong Kong Special Administrative Region,” which played an important role in correcting the root of the problem and removing the evil.

Some people have questioned the addition of this text, mainly on the grounds that Article 104 of the Hong Kong Basic Law does not stipulate the norms of conduct and consequences, while the Interpretation explains in detail the connotations of both. This doubt cannot be upheld. Instead of making a forensic argument here, I just want to analyze how ridiculous these doubts are from a cultural perspective.

The culture of taking oaths is universally found among all peoples, because human beings, as creatures of speech, have learned to play games with language when they reach a certain stage of evolution, and lying is one of these games. Once people lie, the original signifying function of language suffers harm, and the signifier and the signified no longer correspond. How can you make people believe that what you say is true?  This gave rise to another kind of language game:  oaths. The oath is a special kind of language game, the purpose of which is to suppress the game of lies and to ensure that the original function of language is restored, so that people will believe what the oath-taker says.

Why do oaths have special power? According to the definition of classical scholars, "an oath actually invokes a power greater than itself to preserve the truth of the statement by casting a curse on itself if the statement is false. "
 
In other words, a complete oath consists of three elements. The first element is a statement of fact or a promise; the second element is the invocation of the gods as witnesses; and the third element is a curse against a false oath, which is a consequence that the person making the oath voluntarily assumes.

In the past, scholars generally believed that oaths were effective because people feared the wrath and retribution of the gods. However, according to the contemporary Italian philosopher Giorgio Agamben (b. 1942), the real secret of vows is hidden in the phrase "I swear.” This "I swear" is a perfect paradigm of a "speech act." 

A speech act is behavior that is completed by words, hence the statement itself is an act. It brings "I myself" directly to the forefront as a decisive fact, and is accompanied by certain oaths, or rituals. In this particular moment, similar to the state of exception in the law, the oath-taker returns to his original, naked state, and offers his naked self as a sacrifice.  In Agamben's view, just as the vow is first and foremost a sacrament of language, so the vow can be a sacrament of power.

The constitutional oath is a sacred act of speech, a sacrament of power. A public constitutional oath means invoking the people as witnesses and offering oneself to the people, because in a republic the people are the sovereign, the constitutional subject. Even if the sovereign, the people, are not physically present, their presence must be assumed. Whether you see them or not, the sovereign is there, witnessing the oath. To blaspheme the oath is to blaspheme the gods, to declare war on the gods, so how can there be no retribution?

​To blaspheme the oath of the Constitution is to blaspheme sovereignty, to declare war on sovereignty, so how can one still be qualified to be a member of the legislature? Swearing an oath is already the final appeal to conscience and the ultimate resort to the power of words. Once the power of words is exhausted and moral trust is bankrupt, then our only recourse is legal sanctions.
 
In our country, the Basic Laws of Hong Kong and Macau first established this system of swearing oaths, the idea being to make the two Basic Laws the civil religion of Hong Kong and Macau. If the Basic Laws are not believed in, what will the local residents of Hong Kong and Macau use as a political consensus? What will Hong Kong and Macao rely on to build mutual trust with the Central Government?

Let's treat the Constitution and the Basic Law with sincerity and seriousness! May the motherland be safe and Hong Kong be safe!

Notes

[1]  陳端洪, “2020年’國家憲法日’座談會主題演講：國家安全與憲法北京大學法學院,” available online here.

[2] Translator’s note:  On the “burning together camp,” see https://en.wikipedia.org/wiki/Lam_chau_(doctrine).

​[3]  Translator’s note: Article 31 stipulates that “The state may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People's Congress in the light of specific conditions.”