Theorizing constitutional change
3.3.1 The politics of transition
Even after Yuan's departure, most of China would continue to be ruled by various warlord factions for more than a decade. The “question of the guoti” would however resurface amidst debates over China's political structure during the republican era (1912-49).
Already during this period, some of China's leading legal theorists took up the question of constitutional change in a more universal sense. Among the most important contributions were those by Xu Daolin, John C.H. Wu, and Zhang Junmai each of whom sought to put China's national process of constitution-formation in dialogue with those of other states, including the United Kingdom, United States, Weimar Germany, and Japan.Xu built on the theories of Imperial German and Weimar jurists such as Paul Laband, Georg Jellinek, Rudolf Smend, and Carl Schmitt to describe a typology of forms of change that could occur within constitutional systems.[157] Broadly speaking, he divided all such changes into those of a “formal” or a “material” character, and he further emphasized the distinction between individual text-based norms of a given state's Constitution and the “holistic meaning” (Sinnzusammenhang) of that Constitution; a change, even a violation of written norms, could be legitimate if consistent with the latter.[158] Such practice, legitimate but regarded as inconsistent with existing constitutional text, could lead to a “silent constitutional transformation” and eventually (but not necessarily) formal constitutional amendment. On the other hand, a formal constitutional norm (including amendments) could also be regarded as “impossible” to operationalize due to its inconsistency with the holistic constitutional meaning, and thus rendered de facto inoperative.[159]
A similar theoretical approach combined with a sense of Realpolitik characterized the work of John C.H.
Wu, who was the lead drafter of the so-called “5-5” Constitution draft of 1936. In his draft, prepared during a time of maximum Guomindang dominance in domestic politics but considerable turmoil over internal political divisions and Japanese invasion, Wu assigned the functions of“State form” in modern China 53 determining constitutional meaning not to the judiciary but to two of the political branches of the five power government - constitutional interpretations were to be provided by the Judicial Yuan, but initiated by the Control Yuan (a national supervision body unique to China's “five power” constitutional system).[160] Both of these branches of government seemed, given the circumstances of the time, almost certain to remain under far more direct GMD authority than would the judiciary. Constitutional amendment, meanwhile, would still be reserved to the more popular/democratic National Assembly, which could pass amendments by a two-thirds majority at a session meeting at least a three-fourths quorum requirement. However, a new requirement was also added that amendments would have to be proposed at least one year before the opening of the relevant National Assembly session at which they would be considered.[161] This prolongation of the amendment process would, theoretically, stabilize the precarious constitutional order against political adventurism either by individuals or competing factions.
A decade later, a more detailed and comprehensive attempt to preserve “overall constitutional meaning” characterized the efforts of Zhang Junmai, who led the drafting of the Republic of China's 1946 Constitution. During a period of highly uncertain and combustible cooperation between the Guomindang and its rival, the Communist Party, Zhang coordinated the drafting of a Constitution intended for a unity government between the two sides, including basic norms that could be regarded as representing their points of consensus. This search for overlap between rival parties was concretized into Chapter XIII of the ROC Constitution, on “Fundamental National Policies” (jiben guoce S^HM).[162] Though brief, it contained a set of highly important commitments that had been agreed upon (in principle) during negotiations between both the GMD and CPC.
It included provisions on the national economy and social security, as well as national defense, education, border regions, and diplomacy. In each of these areas, a set of basic commitments was articulated that comprised the shared policy agenda of China's various rival parties, at greater or lesser degrees of specificity. Social welfare rights were now constitutionalized. So too was a commitment to peaceful foreign policy and recognition of the United Nations Charter, along with defense of China's territorial sovereignty and the interests of overseas Chinese. Though their relation with the rest of the constitutional text was ill-defined, these “Fundamental National Policies” could be seen as a de facto “core” of the Constitution beyond future amendment - as the political unity of the rival parties was premised upon precisely these points of consensus.[163]The 1946 Constitution was adopted by the ROC, but renewed civil war between the GMD and CPC parties led to the latter's disavowal of the Constitution, and the former's nullification of it by means of emergency legislation. The CPC thus
had to create its own constitutional system as it approached victory in the conflict. In laying out the requirements for dealing with constitutional law in light of the Marxist theory of base and superstructure, Mao Zedong turned again to the notion ofguoti. For Mao, guoti now served to encapsulate not only the republican form of government and the vesting of popular sovereignty with the People, but also the dominance of the proletariat within the polity as the true “factual” representative of the state's unity.[164] As Mao defined it:
This guoti issue has been bandied about for decades since the Late Qing period, without being really clarified. In fact, it simply refers to the question of the place of social classes within the state... Meanwhile the issue of zhengti (form of government) is the question of which form of political structure... is used by a certain social class to oppose enemies and defend its organs of political authority.[165]
In other words, for Mao, China's guoti was one in which the proletariat would exercise dictatorship over other classes.
However, the specific formal features of government, by which this ultimate authority was to be exercised, were up for debate. The subsequent plan to place the highest legislative authority with a mixed body not limited to (albeit dominated by) the CPC was the key reflection of the ideological platform of “New Democracy.”[166] New Democracy stood for the view that all “progressive” forces in society should unite, with workers and peasants leading sympathetic members of other groups to establish a more just and representative political system.[167] This notion was supposed to be compatible with the “People's Democratic Dictatorship” exercised by the Party on behalf of China's workers and peasants as the main components of “the people.”3.3.2 Constitution and mobilization
The Republic of China's 1946 Constitution was officially abandoned by the CPC before the official founding of the People's Republic of China, being specifically superseded by the decisions of a new Chinese People's Political Consultative Conference convened by the Chinese Communist Party on September 21st 1949.[168] As the 1946 Conference managed by the ROC had been, the 1949 CPPCC was orchestrated with the majority of committees and discussions led by the ruling party, now the CPC, and with delegations from minority parties and socially
“State form” in modern China 55 prominent individuals intended to foster a clearly subordinated democratic complement to top-level plans for the de facto constitutional convention.[169]
The 1949 CPPCC developed the “Common Program of the Chinese People's Political Consultative Conference” (Common Program) as a constitutional document establishing the basic parameters of the newly established PRC state. Under the system instituted, the CPPCC would act as a national legislature responsible for the passage of state laws, while the central government would have authority to issue and implement more specific administrative regulations.
As part of its legislative and consultative duties, the CPPCC went on to convene a number of Small Discussion Groups on key issues, among which were discussions producing advisory opinions on the boundaries between the political subjects “the people” (renmin AK) and “the citizen” (gongmin AK).[170] The latter concept, the groups held, was to be defined in terms of legally conferred rights and duties that should be defined in legal instruments, while the former was essentially “a social and political concept.”[171] Inherent in this distinction was recognition of the tension between a national population conceived of as rights-bearing individuals versus one conceived of as a unified, active political subject (represented in this capacity by the Party).[172]Both due to Soviet suggestions and to prevailing opinion within the CPC, the decision was reached to hold national elections for membership in a new, dedicated national legislature, and then to draft and pass the new Constitution. The resulting 1954 Constitution created the basic structure of PRC government that still exists today, including both supremacy of the newly formed National People's Congress (NPC) and a lack of Anglo-American-style separation of powers.[173]
This Soviet-influenced Constitution had 106 Articles, which established the basic structure of the PRC state system as it continues to exist today. It also established basic institutions of judicial administration, including the Ministry of Justice, and followed earlier Chinese constitutions in calling for “independent” exercise of the judicial function,[174] but like those documents, it did not clearly specify protections for that independence. Further, the 1954 Constitution followed the model of the Soviet Union and its satellite states in asserting in its Preamble, but refusing to formally institutionalize or identify in its main text, the
“leading” role of the Communist Party respective to the state.[175] The Preamble to the 1954 Constitution attested to both the “indestructible friendship” of the PRC and the Soviet Union (along with other socialist states) and the need for a gradual process of transition from New Democracy (with its above-noted “bourgeois” elements) to socialism.[176] Finally, in an innovation upon its models, the 1954 Constitution also created the new office of “Chairman of the People's Republic of China,” aka State Chairman (Guojia Zhuxi) or (in more recent translations) President.[177]
The 1954 Constitution assigned amendment to the new NPC, operating as the notional representative of popular sovereignty.
A two-thirds majority of the NPC would be required to pass any future constitutional amendment (or to replace the Constitution as a whole). By 1957, however, ideological conflict and elite politics had resulted in increasingly radical campaigns such as the “AntiRightist Movement,” which targeted white-collar professionals, especially those in law and the judiciary, as counter-revolutionary elements. Even basic attempts to realize the provisions of the existing 1954 Constitution (for example, by passing basic legislation setting forth liabilities for the purposes of civil litigation) were put on hold as ideological struggle became the Party's priority.[178] Notably, legal scholars who had called for a more liberal constitutional system were prominent targets for criticism and political condemnation.[179]This situation persisted through the subsequent era dominated by ideological campaigns including the Great Leap Forward (1958-62) and, most significantly, the Cultural Revolution (1966-76). During the Cultural Revolution era, legal professionals, legal studies, the judiciary, and law itself were officially renounced in favor of proletarian activism and “struggle.”[180] The Ministry of Justice was shut throughout this period, and many of those with legal expertise were subjected to intense pressure. Towards the very end of the period, however, a new Constitution was promulgated in 1975 in the attempt to “lock in” some of the basic policies that had been favored by the leftist ruling clique. This Constitution of 29 Articles eliminated major parts of the state structure, including the office of the President. Meanwhile, it enshrined class struggle and the “dictatorship of the proletariat,”
“State form” in modern China 57 and, though enumerating fewer rights than its predecessors, did claim to protect an ideologically important set of “Four Big Freedoms” sida ziyou):
the freedom to speak out, to air views freely, to hold great debates, and to write big-character posters (dazibao).[181] The 1975 Constitution included a reference to the power of the NPC to amend the Constitution but did not specify the requirements for doing so.[182]
The end of the Cultural Revolution led, over the course of a few years, to the dramatic reversal of policies that would henceforth be referred to as the era of Reform and Opening-Up. This reversal also entailed a process of intra-Party debate and competition. Under Hua Guofeng, the new 1978 Constitution was issued that returned to key features of the 1950s. Amendment power was however still assigned to the NPC, without its procedures being specified. General dissatisfaction with the slow pace of reform under Hua and shifting factional politics led to Deng Xiaoping subsequently coming into power as de facto Party leader in 1978.[183] Once in power, Deng and his allies promoted legal reform paired with an advocacy of clear boundaries.
These limits were embodied in “Four Cardinal Principles,” which served to make clear(er) the division between areas in which free debate would be permitted and those, particularly those concerning the fundamental socialist character of the PRC, the primacy of the Communist Party, and the continuity of its commitment to Marxism-Leninism and Mao Zedong Thought, where speech, advocacy, and political discourse would be restricted.[184] These basic commitments, written into the Charter of the Communist Party, are today still referred to as “the foundation on which to build the country” and as limits on any future projects of constitutional revision.[185]
3.4