The Decision to Revise the Constitution

A. The Political Context of the 1982 Constitutional Transition

The choice to initiate a process of constitutional revision was taken against the backdrop of a major set of political transformations following the death of Mao Zedong in 1976.

Also highly significant was the systematic dismissal from government of offi­cials, up to China's then head of state, Liu Shaoqi, associated with the betrayal of socialist ideals. Numerous prominent Party leaders who had been highly active in policy-making alongside Mao during the 1950s, such as Liu, Deng Xiaoping, Peng Dehuai, Bo Yibo, Xi Zhongxun, et al, were like other accused rightists ‘strug­gled against' in public criticism sessions. Targets of denunciation were removed from office, at times imprisoned, beaten, and/or sent to work as labourers, and in some prominent cases (such as Liu's) ultimately died of this ill-treatment.^[214] These patterns of ideological conflict and political chaos were repeated at various levels of government throughout China, with major repercussions for social and economic stability.

During the period immediately following Mao's death after a protracted period of illness, the officials most directly associated with the late phase of the Cultural Revolution - the so-called ‘Gang of Four' - were arrested in an internal coup by political rivals.

Beginning with Hua’s assumption of authority between late 1976 and late 1978 there was a ‘rehabilitation’ of some leading officials who had been persecuted during the Mao years. The most prominent returnee to government was Deng Xiaoping. Previously, Deng had already been restored to a central role after a supposedly successful process of ‘self-criticism’ in 1974, but was then again ousted by his political rivals. Following Hua’s rise, Deng was brought back in mid-1977 to serve under him as Vice Chairman of the Party, with the two leaders’ roles remain­ing in that ranking at the opening of the 11th Party Congress in November 1978. However, by the Third Plenum convened the next month, Deng’s line calling for a more comprehensive shift in policies away from those of the Mao era - loosely summed up as ‘ending chaos and restoring order’ while subordinating ideology to ‘seeking truth from facts’ - had won decisive approval from the majority in the Party leadership.^[216]

Over the following two years, Deng’s platform of reform and modernisation became the driving force for Party policy across a wide range of areas.

Deng and Chen led the critiques of Hua’s cautious platform as an insufficient break with the past, the former as Vice-Chairman of the Party and the latter as the first head of the newly-established Economic and Financial Commission. Over the period between 1978-1980, a number of officials identified as ‘liberal’ or ‘reformist’ were brought into the highest ranks of the Party. These included in particular Hu Yaobang, who had long been a mentee of Deng’s and who was brought back to serve as head of the Party’s Organisation Department (respon­sible for staffing and thus ‘rehabilitation’ of wrongly persecuted members), and then as head of the Propaganda Department and in other high level roles. Also important was Zhao Ziyang, who had been involved at various times in promoting liberal and market-oriented policies while governing Guangdong and Sichuan, and who was brought into central policy-making in 1979 as Chen's successor atop the Economic and Financial Commission, which was also raised in status to a central Party organ.^[217]

Amidst these policy and personnel changes of the late 1970s, Deng's status remained technically subordinate to Hua Guofeng.

At the beginning of 1979, Deng had already begun to more fully articulate the agenda of ‘Reform and Opening-Up' that had been decided the previous December. In February, he announced a platform of ‘Four Cardinal Principles', viz. upholding the socialist path; upholding the people's democratic dictatorship; upholding the leadership of the Chinese Communist Party; and upholding Mao Zedong Thought and Marxism-Leninism. These principles set limits to the poten­tial scope of potential political reform, though their exact application remained to be determined.^[219]

The plan to reform the Constitution seems to have been initiated by Deng shortly afterwards, and was indicated by him at that time in a meeting with Hu Yaobang, the Vice-Premier Yao Yilin, and Deng Liqun, the latter two being officials who favoured Deng's economic reforms but, unlike Hu Yaobang, were relatively conservative on political matters. Yao and Deng at this point worked together as Secretary and Vice-Secretary, respectively, of the Party's Central Office, both had backgrounds in foreign trade policy, and also had the support of Deng's main intra-Party rival aside from Hua, Li Xiannian. The immediate justification for constitutional revision was the need to amend the Constitution's provisions regarding elections and local government organisation, both of which still reflected Cultural Revolution-era aspects that now clashed with the new reform agenda. The irregularity of NPC elections, for example, meant that some former Gang of

Four supporters still remained in office.

Over the following year, the constitutional reform plan shifted into a broader and more open-ended project of revision, in close association with the expansion of Deng's intra-Party reform platform, which began explicitly condemning aspects of Maoist ideology and policy. As an important aspect of this shift, Deng was able in February 1980 to bring Hu Yaobang into prominent roles at the head of the central Party Secretariat as well as, along with Zhao Ziyang, onto the Politburo Standing Committee. Also in February 1980, the Central Committee resolved at its Fifth Plenum to remove the language from the PRC Constitution's Article 54 conferring rights ‘to speak out freely, air their views fully, hold great debates, and write criticism posters' that had been added in 1975.^[221]

On 18 August 1980, Deng presided over an enlarged meeting of the Politburo in which he outlined major reforms, including the plan to revise the Constitution. In explaining the importance of this initiative, he stated that:

We must make our Constitution more well-rounded, more developed, more precise, capable of ensuring that the people genuinely enjoy the power of overseeing the organi­zations at various levels of state governance and industry, and that they enjoy sufficient civil rights; we must ensure that all ethnic minorities enjoy genuine autonomy in their regions; we must also reform the National People's Congress system.... The princi­ple of prohibiting the excessive centralization of power will also be reflected in the Constitution.^[222]

B. Initiation of the Drafting Process

On 30 August 1980, the Central Committee of the Chinese Communist Party submitted to the NPC Presidium a recommendation for the establishment of a Constitutional Revision Committee. This recommendation stressed that, despite its recent adoption, various aspects of the 1978 Constitution already ‘were not well-adapted to the needs of the present political-economic life and development of modernization', owing in part to the ‘huge changes' that had occurred in the past two years.

The NPC on 10 September then adopted a resolution establishing the Constitutional Revision Committee (CRC), which would produce a draft Constitution, and charged the NPC Standing Committee (NPCSC) with the promulgation of the draft and solicitation of public comment and discussion, to be followed by further revisions by the CRC. A finalised draft would then be submitted to the NPC for review and adoption.^[224] At the same session of the NPC, Zhao Ziyang was appointed as Premier, replacing Hua Guofeng. As Chairman of the NPCSC and a PSC member, Ye Jianying's ongoing support at this point was crucial for Deng's displacement of Hua and the unfolding of his broader reform initiative. Previously Ye had played a major role both in Deng's rehabilitation and, in the meetings of late 1978, had issued a blistering attack on the Cultural Revolution and its ‘fascist' and ‘feudal' character that helped lay the groundwork for Deng's sidelining of Hua at the Third Plenum.^[225]

The newly-established CRC was chaired by Ye Jianying. The vice-chairs were Song Qingling, the 87-year-old widow of Sun Yat-sen and Ye's predecessor as NPCSC Chairwoman, and Peng Zhen, another veteran revolutionary and a lead­ing official in legal affairs during the late 1950s and early 1960s, among other roles. Peng, unlike Ye and Song, had also been targeted for severe attacks during the Cultural Revolution, including the loss of his official positions, long-term impris­onment, and intense political criticism sessions targeting himself as well as his close family members, several of whom died as a result.^[226]

After his rehabilitation by Deng in 1978, Peng had quickly returned to taking a major role in legislation as head of the NPC's Legislative Affairs Commission, leading the drafting of revised laws governing the PRC judiciary, procuratorial system, criminal law and criminal procedure law, et al. At the beginning of 1980, he was also given charge of the highly important new Political and Legal Affairs Commission (PLAC, zhengfawei), which resurrected a ‘leading group' which he had overseen during the late 1950s but which had fallen into disuse during the Cultural Revolution. The PLAC was intended to be a centralised office for general supervi­sion of matters related to the legal system, in contrast to the ad hoc and erratic approach to legal matters taken by the Party during most of Mao's leadership.^[227] Further, at around the same time Peng was put in charge of the important political task of coordinating the official investigation and prosecution of the ‘two cases' of alleged anti-state and anti-Party activities by Mao's former successor Lin Biao and the Gang of Four.

Aside from its three chairs, the CRC in total comprised 103 members including all of the members of the Party's Politburo and Secretariat, other important high- level officials, heads of the minor ‘democratic parties', as well as some prominent (and politically reliable) intellectuals. Like other organs of state-level governance such as the NPC, the CRC was also designed to convey some representation of China's main ethnic minorities, with about ten members from non-Han groups including three Tibetans and two Uighurs.^[228]

Of course, the members with the greatest de facto authority, should they take initiative in exercising it, were Deng Xiaoping himself as well as other top Party elders, eg Hua, Ye, Peng, Chen Yun, Li Xiannian, Yang Shangkun, Wan Li, Bo Yibo, Xi Zhongxun, Wang Zhen, Song Renqiong, and Zhou Enlai's widow Deng Yingchao - all of whom were included on the CRC. Deng's liberal depu­ties Hu Yaobang and Zhao Ziyang, now both technically his intra-Party equals as PSC members, were also included. Meanwhile, a Secretariat for the CRC was also created, with the orthodox Marxist theorist, historian, and former propa­ganda official Hu Qiaomu - later referred to by Deng as ‘the Communist Party Central Committee's number one pen' - as its Secretary. Hu Qiaomu was then serving as the President of the re-established Chinese Academy of Social Sciences, and had previously served as Mao Zedong's secretary for two decades between the 1940s-60s, participating in key activities such as the drafting of the 1945 historical resolution that cemented Mao's status as the Party's ideological leader and the drafting of the 1954 Chinese Constitution (for which Mao was the formal coordinator). His strong ties with both Li Xiannian and Deng and his expertise in Marxism and Party ideology made him an interface between intra-Party forces pushing for economic and political liberalisation and conservatives advocating a return to Soviet-style governance.^[229]

Acting as Vice-Chairs of the CRC Secretariat under Hu Qiaomu were Wu Lengxi, Hu Sheng, Gan Cisen, Zhang Youyu, Ye Duyi, Xing Yimin, and Wang Hanbin. All were trusted Party members with backgrounds in various policy areas related to law or political ideology. However, some outright liberals also had a significant presence in the work of the CRC, such as the 80-year-old Harvard-trained constitutional scholar Qian Duansheng, who had risen to promi­nence as a critic of the Guomindang before 1949 and, despite early support for the Communist Party, was later targeted as a rightist between 1957-1976. Qian was appointed to serve as an advisor to the CRC Secretariat.^[230] The CRC Secretariat also appointed several legal scholars as members, beginning with Xu Chongde, Xiao Weiyun, Sun Li, and Wang Shuwen. Xu played a particularly notable role during the drafting and later also became one of the 1982 Constitution's most important academic experts and chroniclers.^[231]

II.