The Work of Revision

A. The Exploratory Phase

At the very first plenary meeting of the CRC on 15 September 1980, Ye Jianying as convenor reiterated the main political context for the necessity of constitu­tional revision.

From September 1980 through the end of 1982, the CRC was to hold five plenary meetings. The CRC Secretariat was, however, continuously active in discussion and drafting. Under Hu Qiaomu’s direction, the CRC Secretariat began by opening up a relatively wide-ranging process of discussion about poten­tial revisions. Among the questions that Hu raised at the early phase, reflecting his own priorities as well as those of Party leaders and in some cases those of the legal scholars at the Secretariat, were the following: should the Constitution include a Preamble?; should the Constitution still open with a ‘General Outline’ section?; should the position of ‘State Chairman’ (Guojia Zhuxi, often trans­lated as ‘President’) be reintroduced, reversing its abolition in the 1975 and 1978 Constitutions?; should the ‘Basic Rights’ chapter of the Constitution be revised and/or moved up in importance?; should People’s Communes remain the key organs at the local level of government, or be subjected to local state authorities?; and should the NPC, the supreme organ of state power, retain its current struc­ture, or be substantially reformed?^[233]

Based on Xu Chongde’s account, at the very first session of the CRC Secretariat, two days after Ye’s speech, Hu Qiaomu put special emphasis on the last of these questions.

size from the current 3, 000 members and, still more significantly, to turn it into a bicameral body.²⁶

Hu's bicameral legislature proposal was to become one of the most signifi­cant points of debate and contestation throughout the remainder of the drafting process. At the second meeting of the CRC Secretariat on the 24th and 25th of September, the drafters continued to enthusiastically discuss the possible remak­ing of the NPC. Should each of the two chambers be equal in authority? Should there still be only one Standing Committee guiding the overall work of the NPC, or a separate committee for each chamber? The question of the overall size of the NPC and of each chamber was also a variable - Hu Qiaomu suggested a total membership of around 1000 legislators, with 500 in each chamber. Meanwhile, some minority views among CRC Secretariat members recommended abandoning the suggestion and retaining a unicameral legislature based on China's ‘historical conditions', different from those of the West. Others, however, suggested that the CPPCC could perhaps be transformed from its current status - as an ill-defined ‘advisory body' intended to maintain a ‘united front' with non-Communist Party members - into Hu's envisioned upper house.²⁷

Although the bicameral plan would continue to be discussed for months, the idea of turning the CPPCC into a kind of Chinese Senate received a major early setback only two days later.

must not turn the CPPCC into an organ of [state] power. The CPPCC can debate, raise criticisms, and make suggestions, but it has no authority to initiate inquiries or conduct supervision of the government. It is not the same as the NPC - please note this.²⁸

While this was a relatively clear (and firm) shutting of the door on this version of legislature reform, the CRC Secretariat actually continued to contemplate it alongside other versions. Interestingly, it is likely that Deng's own position at the time as Chairman of the CPPCC made it far more politically acceptable to discuss empowering this non-Party institution despite his clearly stated objections to the proposal, which he had to repeat months later in stronger terms.²⁹

Overall, discussions of the bicameral legislature plan tended to strongly suggest the incorporation into the NPC of a ‘Senate'-like chamber representing various sectors of society, such as professions and community or ethnic organisa­tions. Indeed, although different potential ideas for the name and composition of the two chambers were debated, the most supported plan in the CRC Secretariat was for an NPC comprising a lower ‘Local' or ‘Geographical Chamber' (difang yuan) and an upper ‘Social Chamber' (shehui yuan).³⁰ Alternative possibilities

²⁶ ibid.

²⁷ ibid 564.

²⁸ Cheng (n 20).

²⁹ ibid.

³⁰Xu Chongde, ‘Xiugai Xianfa Shiyi [Ten Theses on Revising the Constitution]' in Xu Chongde Zixuanji (Beijing, Zhongguo Renmin Daxue Chubanshe, 2007). for the latter also included a ‘Chamber of Professionals’ or ‘Chamber of Social Occupations’ (shehuizhiyeyuan), a ‘Chamber of Peoples’ (minzuyuan), or, indeed, a ‘Senate’ (yuanlao yuan).^[235] In that sense, even if no explicit connection was drawn between the potential new chamber and the CPPCC, the former would inevitably replicate the functions of the latter as a body representing non-Communist Party social actors.

There were also debates over the other issues raised by Hu Qiaomu and his Secretariat members at the beginning of the drafting process. The issue of includ­ing a Preamble, for example, was debated along with the content that such a Preamble should reflect. Other important questions, such as the reinstatement of the position of State Chairman and the introduction of term limits for lead­ing state positions, also saw different views aired. So too did a range of other issues, such as whether the Constitution should explicitly recognise ‘intellectuals’ alongside ‘workers’ and ‘peasants’ as key constituents of its representation. Though seemingly a matter of wording with little direct legal relevance, was in fact a very serious issue given the extensive persecution of intellectuals during the Cultural Revolution and widespread views among radical activists that they were not among the working class.

Indeed, these and other ideological questions having to do with the appraisal of the Cultural Revolution and the Mao era as a whole significantly overshadowed the technical issues of constitutional design being considered at the CRC Secretariat. As of 1980, there was still no full intra-Party consensus on the degree to which the policies of the previous decades had been ‘errors’, and the extent to which official positions on core principles such as class struggle, economic ordering, and the Party’s relations with the state had to be transformed. In early 1980, the need for such consensus had prompted another major drafting initiative to produce a new official resolution on Communist Party history, which was generally overseen by Hu Yaobang as head of the Party Secretariat but commissioned to Hu Qiaomu. Hu Qiaomu was thus simultaneously involved in directing the drafting of both the state Constitution and the Party’s historical resolution.

B. Overlapping Transformations

From the beginning the historical resolution was in part both an affirmation of the Mao era and a condemnation of some of its perceived errors and excesses. The very fact that Hu Qiaomu was put in place as its lead drafter was indicative of this, as Hu had in fact been largely responsible for drafting the Party’s first historical resolution, in 1945, which had helped to solidify Mao’s greater authority as the Party's leader vis-a-vis his predecessors. Now, although Deng's drive to initiate a new wave of reformist policies required a clear break with the late Mao era, he also sought to ensure a substantial sense of continuity.

This was made explicit, for example, in some of Deng's comments in March 1980 to Central Committee members, where he noted that even some of the pre-Cultural Revolution policies that resembled and anticipated the later attacks on rightists should be affirmed:

The necessity for the anti-Rightist struggle of 1957 should be reaffirmed. After the completion of the socialist transformation, there was indeed a force... in the country that was bourgeois in nature and opposed to socialism. It was imperative to counter this trend. some people really were making vicious attacks at the time, trying to negate the leadership of the Communist Party and change the socialist orientation of our coun­try. If we hadn't thwarted their attempt, we would not have been able to advance. Our mistake lay in broadening the scope of the struggle.^[236]

In these and other such remarks on several occasions, Deng made clear some overall limits within which the forthcoming resolution should draw a line of separation with the Mao era. He repeatedly insisted that the period before 1957 should be almost entirely affirmed and that Mao Zedong Thought should still be upheld as the basis for the Party's overall ideology. Mao's later mistakes, begin­ning with the Great Leap Forward and culminating with the Cultural Revolution, should be regarded as ‘violations of his own correct ideas'.^[237] By embracing the early Mao period and its legacy, but suggesting a major break with the errors of the later period and a willingness to break new policy ground, the Party could show that it was ‘a great party with the courage to face up to, and correct, its own mistakes'.^[238]

The resolution was composed along these lines, with Hu Qiaomu's early draft - considered ‘too depressing' by Deng - finally replaced by a draft more in line with these guidelines.

It is essential to consolidate the people's democratic dictatorship, improve our Constitution and laws and ensure their strict observance and inviolability. We must turn the socialist legal system into a powerful instrument for protecting the rights of the people, ensuring order in production, work and other activities, punishing criminals and cracking down on the disruptive activities of class enemies. The kind of chaotic situation that obtained in the ‘Cultural Revolution' must never be allowed to happen again in any sphere.^[239]

The resolution also called for the improvement of the Party’s governance system of ‘democratic centralism’, the improvement of its cadre’s selection, training, and work styles, and in general improved efficacy of the Party and government in pursuing modernisation:

We must carry out the Marxist principle of the exercise of collective Party leadership by leaders who have emerged from mass struggles and who combine political integrity with professional competence, and we must prohibit the personality cult in any form. It is imperative to uphold the prestige of Party leaders and at the same time ensure that their activities come under the supervision of the Party and the people.^[240]

Related political transformations were being introduced at the time to promote the principle of ‘collective leadership’ and oppose the excessive centralisation of author­ity within the Party. Deng had, for example, introduced the practice of having multiple candidates and secret ballots in elections for Party committee positions at various levels. At the pinnacle of the Party’s leadership structure, meanwhile, Hua Guofeng (whose policy of uncritically following all of Mao’s personally-decided policies, including the errors, had been explicitly criticised in the Resolution) was made to step down from his position as Party Chairman. At the end of June, he was replaced by Deng’s liberal protege Hu Yaobang, who, despite his rise in status to technical Party leader, remained subordinate to the Party elders and was aware that they, including Deng, rejected his position in favour of a more total break with the Mao era.^[241]

The Constitutional drafting process also took a major turn around this time. Peng Zhen, although technically Hu Qiaomu’s supervisor at the CRC, had been largely focused on the ‘two cases’ of investigating and prosecuting the Gang of Four and (posthumously) Lin Biao. That trial had concluded in January 1981 with guilty verdicts for all four as well as some close associates. In May, Peng began to pay closer attention to the constitutional drafting process, including the list of issues that had been identified as key questions by Hu Qiaomu. The latter at this time was experiencing an illness brought on by overwork, and had suggested to Deng Xiaoping that the constitutional drafting process be delayed. Deng, however, was insistent about trying to produce a new Constitution soon, and so entrusted Peng with oversight of the remainder of the process.^[242]

From July 1981 on, Peng played a major role in coordinating the development of an official draft Constitution that could be debated by the full CRC and then passed onto the NPC and opened up for public commentary. The CRC Secretariat had by this point produced five internal discussion drafts, which also included alternative versions of a number of points where either the drafters' opinions had differed or there was a need for a decision by the Party's central leadership. These included the questions of whether to have a unicameral or a bicameral NPC, whether to reintroduce the State Chairman position, whether to include a Preamble and/or a ‘General Outline' section, and several other major issues. On most of these, Peng was to provide the authoritative decisions as the CRC prepared its official draft.

III.