Completion and Adoption

A. A Depoliticised Process

Soon after taking personal charge of the CRC's drafting work, Peng expressed dissatisfaction with the pace of progress since the body's creation. He specifically raised the critical question as to ‘why, after more than ten months of work, has the CRC Secretariat not been able to unify their thinking, continued to have a muddle of opinions, and failed to produce a draft for consideration?'^[243] Peng's own answer to this question was that the drafters had used the wrong approach to their work, failing to take a single pre-existing Constitution as the benchmark model for the creation of their new version.

The decision to closely base the remaining work of the CRC on the frame­work of the historical resolution and the 1954 Constitution was also associated by Peng with a general principle, which he summed up as ‘don't change anything that doesn't need changing’. Based on this guideline, the work of the CRC Secretariat was greatly simplified. For example, because the NPC was established as a unicam­eral legislature in the 1954 Constitution, it would remain as such, and Hu Qiaomu's bicameral plan would be abandoned. As to the Preamble, although one had not been directly included in 1954 (instead, a similar text had been part of the official report adopting the Constitution), it would now be logical to produce one reflect­ing the historical resolution.^[244]

Peng's view regarding the functionality of the NPC, which was ultimately adopted, was that the organisation's basic structure should be retained but that its Standing Committee should be further empowered and turned into a relatively continuous organ of government, its members prohibited from holding other state offices contemporaneously, and its work facilitated by special expert commit­tees on various important areas of legislation.^[245] According to Xu Chongde, Peng was also personally responsible for introducing a number of specific provisions into the CRC's draft.

Between October and December 1981, the Secretariat members produced a preliminary draft reflecting the above considerations, although on a number of issues, Peng felt, the Politburo and Central Committee would still have to make explicit decisions. On 19 December, Peng submitted to the Deng, Hu Yaobang, and the Central Committee a report indicating the progress of the drafting as well as a list of 16 questions to be decided at the central level, including whether to reintro­duce the State Chairman position, which, although it had been present in the 1954 Constitution, was obviously a highly politically sensitive question. Other topics covered included the ‘right to strike', the ‘right to freedom of movement', whether to introduce new provisions for ethnic minority self-government, whether to introduce new rules on property ownership, how to handle NPC reform, and what provisions should be included for term limits. With these matters being debated internally within the Party leadership apparatus, a new CRC draft was prepared in February.

Over the course of February and March 1982, the Politburo under Deng's de facto leadership made decisions on several of the 16 questions Peng had raised, in many cases reflecting views that Peng had already expressed or that had been expressed to him by Deng.

As was the case with Deng's overall reform programme of the period, the Politburo's approach to the draft focused primarily on improving the state's func­tioning and legality, promoting an orderly, stable environment for economic development and ‘socialist modernization’. Although preventing the centralisation of power, increasing the democratic supervision of government, and improving the protection of individual rights were also cited as goals, and did manifest in various ways at the time, they were explicitly treated as subordinate issues. Indeed, even in terms of regulations for the economic sphere, the lack of clear consensus in the Party leadership on the extent of marketisation led to an omission (to be addressed in successive later amendments) of clear provisions for private property or land ownership. Overall, by the end of 1981, the prior relatively open-ended nature of constitutional revision was clearly narrowed in scope, with a ‘return to 1954' for many core aspects of the state.

B. Final Modifications

At the same time, other concerns and motivations aside from order and devel­opment continued to play significant roles in the drafting process, and would be reflected in the final text. These were at times introduced by other CRC members, particularly during the sessions held to discuss the CRC Secretariat's official draft throughout early 1982. During several meetings, for example, CRC members debated the issue of religious freedom, with Su Ziheng, Vice-Chairman of the Taiwan Democratic Self-Government League, suggesting removing the draft's language about ‘prohibiting all superstitious activity' not associated with recognised religions, as the line between religion and superstition was not easy to draw.^[249] The Tibetan Panchen Lama, a high religious leader who (unlike the Dalai Lama) supported the Party's rule, also successfully argued for eliminating the explicit reference to the ‘freedom not to believe in a religion and to disseminate atheism’^[250] The Panchen Lama also successfully had added to the Preamble a refer­ence to ‘socialist democracy, arguing that ‘Our country lacks democracy. We went through 2000 years of feudalism, with deep impacts of paternalism and autocracy.

The prominent sociologist Fei Xiaotong argued for a clearer definition of the place of intellectuals in the class structure of the PRC, in order to decisively reject the persecution and marginalisation they had experienced during the Cultural Revolution.^[252] Meanwhile, the veteran revolutionary Fang Yi, at the time a Vice Premier and President of the Chinese Academy of Sciences (and the following year to be elected to the Politburo), argued strongly in favour of a two-term limit for all high-level state positions, specifically suggesting that ‘three terms is equivalent to half a lifelong term... If a ruler is in place for as long as 15 years, people will be afraid to raise critical opinions, for fear of being persecuted’.^[253] Fang Yi explicitly contrasted China with France, which then had a seven-year presidential term with the possibility of serving two terms. In France, ‘there are opposition parties and it is quite difficult to stay in office [for the maximum possible 14 years]’, while in China’s case, by contrast, ‘our system is Party-led. The longer a leader is in office, the easier it is to have problems arise. I believe that China has a lot of talented people. We should thus have officials retire at the proper age’.^[254]

On these and other issues, CRC members outside of the top leadership structure were able in early 1982 to introduce some significant revisions to the draft, often reflecting more liberal positions or aims than those being emphasised by Deng’s Party centre. However, these changes impacted only specific provisions within the framework already determined by Peng and in line with the deci­sions of the Politburo, without contradicting the latter. By late April, the draft Constitution was able to be submitted to the NPC Standing Committee for review and consideration, and it was also opened up for a ‘Debate by the Entire People, which would last through late August, in which average citizens could submit their views.

The most ill-fated proposals were those that called for paths towards a direct ‘judicialisation’ of the Constitution. Some such views had already been aired in public venues, even before the publication of the CRC’s draft. For example, a short essay in 1981 by a faculty member of the Central Political and Legal Affairs Cadre School named Kang Damin suggested the establishment of a constitutional court which would have independent powers to review and annul state action that it ruled unconstitutional. In this way, Kang had argued, there could be prevented the ‘contempt for the Constitution and brazen display of illegitimate power’ that had characterised the Cultural Revolution.^[255] During the ‘debate’ period of 1982 some scholars made similar arguments, including Yu Haocheng, the editor of the jour­nal in which Kang’s essay had appeared. Yu called for more explicit detail on how the Constitution was to be implemented, the creation of an independent constitu­tional review body outside the NPC, and the introduction of a constitutional oath to be taken by the leading state officials.^[256]

Such commentary calling for an outright liberalisation of the draft, however, was not typical. More frequent were interventions by scholars and other commenters regarding specific constitutional provisions. On these issues, meanwhile, published suggestions in 1982 tended to hew closely to the decisions that had been made, at Peng's initiative, since late 1981. Though some in 1981 had publicly sought to argue for retaining the right to strike, for example, by 1982 published views tended to reaffirm the ‘necessity' of its abolishment.^[257] Meanwhile, some suggestions made in 1982 on relatively less sensitive topics, such as for the explicit inclusion of the legal profession in the Constitution or for the inclusion of stronger environmen­tal protections, would later on ultimately be realised in subsequent legislation.^[258] In the end, though impacts from public participation were quite limited, there were a few provisions that were directly affected, such as the inclusion of language regarding the ‘rational use of land' (as was already provided with regards to ‘natu­ral resources').^[259]

With some minor adjustments included, the Constitution was thus adopted by a full session of the NPC on 4 December 1982.

The promotion of collective governance as a break with the Mao-era centralisa­tion of power and personality cult, for example, was strengthened by decisions in the autumn of 1982 to abolish the role of Party Chairman (with Hu Yaobang tran­sitioning to the position of ‘General Secretary'), as well as to establish the ‘Central Advisory Commission' (CAC) as a formal institution of Party governance. The CAC served as a consultation body composed of Party elders, providing an official means for Deng as well as other veteran revolutionary leaders to continue exerting great influence.^[260] Further, with the NPC appointment of Li Xiannian as China's first State Chairman under the 1982 Constitution, the offices of Party General Secretary and State Chairman would now be held by two different people - an arrangement that would continue until 1993, when Jiang Zemin again united the two offices.

IV.