Constitutional change in a socialist Rechtsstaat

3.4.1 The 1982 Constitution and its evolution

Following Deng Xiaoping’s rise to power in 1978, he made clear his commitment to dramatically changing the PRC’s approach to law, stating, e.g.

In order to ensure people's democracy, we have to strengthen the legal sys­tem. We must make our democracy ordered and legalized, so that this order and law are not changed due to the change in leaders, or changed due to changes in the opinions and attention of leaders.^[186]

Such formulae, as is apparent, brought constitutional development within the framework of the Four Cardinal Principles, viewing it as a means to realize and ensure, rather than to challenge or fundamentally transform, the “people's democracy” represented in the state system dominated by the Communist Party.

The turn to “reform” prompted wide-ranging discussions over the “rule of law” fazhi) in China's socialist system.^[187] Though some hardliners argued

Party power should simply be unconstrained, the more dominant mainstream view held that law should be used instrumentally as an important complement to and stabilizing factor contributing to the success of Party rule.^[188] This view influ­enced constitutional developments. At an expanded meeting of the Politburo in August 1980, Deng made a report detailing the process he envisioned for draft­ing a new Constitution to replace that of 1978. As he wrote:

Our Constitution should be made more complete and precise so as to really ensure the people's right to manage the state organs at all levels as well as the various enterprises and institutions, to guarantee to our people the full enjoyment of their rights as citizens, to enable the different nationalities to exercise genuine regional autonomy, to improve the multi-level system of people's congresses, and so on. The principle of preventing the over­concentration of power will also be reflected in the revised Constitution.^[189]

The subsequent drafting process resulted in the 1982 Constitution, which fea­tured 138 Articles largely rehabilitated from its 1954 predecessor, a few isolated elements drawn from the intervening two later drafts, and a handful of innova­tions.

“State form” in modern China 59 state sector must still dominate the economy, there is a “complementary” role for private economic activity. Finally, Article 5 made clear that “all state organs, the armed forces, all political parties and public organizations and institutions must abide by the Constitution and the law,” and that “[n]o organization or individual is privileged to be beyond the Constitution or the law.” The position of State Chairman, abolished during the Cultural Revolution, was also reinstated.^[190]

Article 1 of the 1982 Constitution, meanwhile, holds that: “The People's Republic of China is a socialist state under the people's democratic dictatorship led by the working class and based on the alliance of workers and peasants.” Soon after its adoption, Peng Zhen, the Party's lead official coordinating “Political- Legal Work,” described this Article as defining “the essence of the state: the guoti[.]”^[191] This was, of course, basically continuous with Mao Zedong's invoca­tion of the same concept four decades earlier, before the founding of the PRC.^[192] The concept had up until this point, however, never been turned into a detailed or coherent legal doctrine. What actual limits did the “state form” as defined in Article 1 impose upon the practical structure of government (i.e. zhengti) - more concretely, must it in practice limit either the Constitution's inherent legal authority or the potential scope of its future amendments?

The first of these questions received a fairly decisive answer after an initial process of contestation.

possible for the Supreme People's Court to interpret the Constitution in particu­lar cases, then the de facto transformation pioneered in Anglo-American judicial review practice would also perhaps be possible in China. The Qi Yuling decision, however, was explicitly revoked by the Supreme People's Court seven years later. Ever since, it has been generally accepted that the 1982 Constitution is unlikely to be treated by Chinese courts as directly judiciable, and that constitutional interpretation under the auspices of the National People's Congress Standing Committee (mostly by reviewing draft legislation before it is promulgated) is the key site for the application of constitutional norms.

Much the same approach, meanwhile, had long since been embodied in the 1982 Constitution's procedures for constitutional amendments as articulated in Article 64, which now required that:

Amendments to the Constitution are to be proposed by the Standing Committee of the National People's Congress or by more than one-fifth of the deputies to the National People's Congress and adopted by a vote of more than two-thirds of all the deputies to the Congress.^[195]

The assignation of amendment power to the NPCSC, a smaller body more tightly connected with Party leadership and the notional supervision of the Central Committee and Politburo, was seemingly intended to ensure that constitutional amendment (or replacement) would become a regular and “normal” feature of Party-directed legislation rather than an occasional and erratic process only acti­vated in exceptional moments of transition, as had been the case before 1982.

3.4.2 Invocations of guoti in the reform-era discourse of constitutional amendment

In keeping with the status of the 1982 Constitution as a nominally supreme legal authority that is nonetheless not directly justiciable by the court system, amend­ments to the document are, under Article 64, treated like any other piece of major legislation. Although this has definitely prevented expansion of the Constitution's contents by means of judicial interpretation, it has at the same time allowed con­siderable flexibility as regards changes introduced in the legislature.

After its adoption, the 1982 Constitution was amended four times prior to its most recent, fifth round ofamendments in 2018. The first amendments were passed in 1988, adding language protecting private economic activity and the transfer of land. Five years later, the amendments of 1993 provided additional clarification of the connection between the PRC state and market economies. In 1999, again, amendments largely focused on emphasizing the protection of rights underlying individual and private economic activity. These amendments of 1999 also repre­sented the first time that the phrase fazhi was included in the constitutional

“State form” in modern China 61 text. Then, in 2004, a set of more general normative amendments were passed to incorporate into the Constitution new language referring to the ideological ortho­doxy of Deng Xiaoping Theory and Jiang Zemin's “Three Represents” theory, while also adding language committing to the protection of “private property” and of “human rights.”^[196] Notably, each of these four rounds of amendments could be interpreted as potentially challenging traditional interpretations of Article 1's definition of China as a “socialist state.. led by the working class.”

The question of how to reconcile this constitutional amendment process with China's guoti was raised as early as the 1980s, from different angles. On the one hand, some scholars sought to argue for limits to possible constitutional amend­ment, in part by citing the role of the Preamble of the PRC Constitution, defining the Communist Party's function of political leadership and the nature of the state, as keys to the overall meaning of the constitutional text.^[197] Indeed, the earliest positive citations of Carl Schmitt's legal thought in the PRC seem to have been in connection with the premise of a special status for the Preamble that would set outer limits to the scope of possible change to all subordinate constitutional norms.^[198] The view that the Preamble of the Constitution sets limits to its amend­ment was discussed by legal scholars, but achieved neither consensus in academic circles nor explicit state endorsement (though it has remained influential).^[199]

Meanwhile, another notion of constitutional amendment also built upon the presumption of a core of “higher” constitutional norms, albeit running in the opposite direction.

doctrine was that such “violations” (e.g. legislation creating private property rights technically conflicting with existing constitutional norms) would eventu­ally be worked into revisions of the constitutional text.^[201] In that sense, it could be argued that the 1988-2004 amendments did reflect a pattern whereby changes to the Constitution’s text both followed and contributed to broader legislative agendas such as the gradual promotion of private economic rights or property ownership.

The idea of guoti has framed several recent debates about the fundamental character of the PRC Constitution and the extent to which its “essence” differs from its non-essential characteristics. Expressing a minority view, Gao Quanxi has built upon the discourse of the Nanjing era to argue that the agent of China’s essentially republican guoti is the National People’s Congress, which builds on a long history of attempts to create a representative legislature embodying the will of the popular sovereign.

Much more common, however, are invocations of guoti that build upon Mao’s and Peng Zhen’s uses of the concept. Thus, for example, Zhou Yezhong and Pang Yuanfu note that there is “ambiguity” between the oft-cited concepts of “the character of the state” (guojia xingzhi), “the essence of the state” (guo- jia benzhi), and “state form” (guoti). However, citing Peng Zhen’s statement noted above, the two Wuhan-based constitutional scholars argue that guoti basi­cally encapsulates the point that the dictatorship of the proletarian class is the core feature of the PRC state system and is also inextricably intertwined with the Communist Party’s “necessary” and “inevitable” leading role in the process of gradually constructing a Chinese Rechtsstaat (fazhiguo).⁸ Such views represent the dominant interpretation ofguoti in today’s PRC.

The PKU constitutional scholar Chen Duanhong argues in more detail that the Communist Party acts as the embodiment of the people’s will and pouvoir constituant,⁸ but also shares this role with four other essential norms (or “fun­damental laws”: genben fa ft^S) that together form China’s true guoti (1) “the leadership of the Communist Party,” (2) “socialism,” (3) “democratic

“State form” in modern China 63 centralism,” (4) “modernization,” and (5) “protection of basic rights.”^[205] The order of these norms is not accidental. Individual rights are not to be ignored, but come after Party leadership, the commitment to socialist political economy, the authority of the “democratic” organs of NPC-led governance, and the basic program of state-led modernization.

In Chen's view, Carl Schmitt's thought provides “the most systematic model of political constitutionalism,” suited for the articulation of an “abso­lute Constitution” that is to be considered separate and apart from individual acts of legislation or the possibility of amendment.^[206] He has also applied these ideas to the constitutional relationship between Beijing and the Hong Kong and Macau Special Administrative Regions (SARs); here, too, the task is to separate the “absolute” constitutional norms defining the meaning of texts such as the Hong Kong Basic Law from the “relative” or merely “governmental” acts that do not have to do with basic issues of what Schmitt called the “the constitution as a normative unity[.]”^[207] [208] [209]

The different points of view regarding the guoti issue have also influenced the most recent set of constitutional amendments passed in March 2018, dur­ing which the commitment to Party leadership was migrated from the Preamble into the main body of the Constitution. Indeed, some constitutional scholars have explicitly characterized the 2018 amendments as “deepening the public's understanding of China's guoi and thus acting as a ‘reconstruction' of China's guoti [woguoguoti de chonggou].”⁹ More pointedly, the 2018 amendments can also be interpreted as having de facto refuted arguments like those of Gao, who has sought to locate the embodiment of pouvoir constituant in the NPC as the legislative representative of the Chinese people. Countervailing arguments like those of Xiao Jinming of Shandong University attribute to Communist Party leadership the character ofguoi while the NPC and its function as the supreme legislative organ of government is relegated to the lesser category of zhengti⁹ In this view, legislative sovereignty is indeed a feature of the form of government established under the PRC Constitution, but this cannot detract from the state form of proletarian/Party leadership.

Among the changes introduced by the 2018 amendments, the abolition of term limits for the positions of State Chairman and Vice-Chairman attracted

particular attention both domestically and abroad. Previously, the notion of a strengthened “Executive” position had occasionally been advocated based on different rationales both by statist conservatives and by a few liberal constitutional scholars - the latter having raised the idea that long-term continuity for an indi­vidual leader might help in promoting consistent progress on reform goals rather than their reevaluation after each ten-year leadership turnover.^[210] In advance of the amendments’ adoption in 2018, however, some scholars raised bold argu­ments that constraining individual power and reinforcing collective leadership had been at the “core” of the 1982 Constitution and that there were thus certain “objective” limits on amendment of the term limit provisions.^[211] The concept of constitutional structure could thus be invoked in an effort to limit amend­ments tending towards centralization of power in the hands of a single authority figure. However, structural arguments could also point in the other direction: the idea that the Constitution established a “trinity” of powers (those of Party General Secretary, State Chairman, and Central Military Commission Chairman) intended to overlap in a single individual^[212] Following the promulgation of the 2018 amendments, of course, arguments over this topic are seldom heard in mainstream settings - the abolition of formal term limits has already been effec­tively decided.

Yet debate over the content of China’s guoti continues, within the lim­its imposed by political circumspection. A particularly pertinent question that remains to be addressed is whether the Constitution’s characterizations of China’s economic system - a key element of both the 1982 text and all but the most recent set of amendments - are genuinely prescriptive, and if so, how. This topic was raised by Chen Duanhong in the second of his five “fundamental laws,” which asserted that as socialism was part of China’s guoi no legislation could be permitted to alter the basically socialist character of the political sys­tem.^[213] Taking the exact opposite approach, however, are scholars who assert that key aspects of China’s economic order have a constitutional status that requires protection against state interference. For example, Shan Feiyue and Xu Kaiyuan of the Shandong University Law School cite Carl Schmitt to argue that “specific [social] institutions can be given special protection within constitutional order,” and accordingly “[the provisions on] ‘socialist market economy’ demand that the

“State form” in modern China 65 autonomy of market actors is not deprived in a long term, over-broad, or essen­tial manner.”^[214] Clearly, the constitutional text itself does not suffice to inform its interpreters whether they should, like Chen, emphasize the importance of Party leadership and the “socialist” side of “socialist market economy” or, like Shan and Xu, emphasize the “market” side and its autonomy. Both advocates of liberalization and those seeking to preserve a robust role for the state (and Party) can thus continue seeking to marshal notions ofguoti and fundamental order in defense of their views.

3.5 Conclusion

It is, of course, ironic that a concept originally used to preserve the dignitas of the Chinese Emperor is now most often applied to assert the unalterable char­acter of Communist Party rule. The invocation of guoti today to define limits to possible constitutional change suggests that notions of “organ sovereignty” [ Grgansouveranitat] - i.e. the nominal deference to popular sovereignty while in fact locating this authority as an intrinsic characteristic of a body not neces­sarily identical with public will^[215] - will continue to characterize PRC political constitutionalism.

There is no explicitly defined doctrine limiting the potential scope of con­stitutional amendment. However, it is possible to read the sections of the Constitution that have been associated with China's guoti - that is, those regard­ing the political leading role of the proletariat and thus the Communist Party as its representative - as de facto imposing such limits shaping the future course of China's constitutional order. The 2018 Constitutional Amendments them­selves, with the migration of Communist Party leadership from the Preamble to the main text and the strengthening of the position of State Chairman, may also be interpreted as affirming this view. They did not however address the more fundamental problem of determining the status of the constitutional text in relation to extraneous sources of authority such as Party regulations or direc­tives, or even ordinary legislation. Moreover, they strongly suggest that any move towards judicial resolution of such questions would, in itself, be incompatible with China's guoti.^[216]

Party leadership, limits on judicial oversight, and the preservation of terri­torial integrity all seem to likely to continue being treated as aspects of state

structure firmly beyond the reach of legislation or constitutional amendment. What remains to be seen, however, is which other aspects of state policy, if any, are ultimately accorded a similar “core” status. If guoti is viewed less as a fixed doctrine and more as a mode of constitutional discourse, it seems highly likely that the argumentative tools it offers will continue to inform future significant public debates.

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