The shifting centre of gravity

When Deng Xiaoping started his reforms in post-Mao China, he made it clear that his reforms necessarily included political reforms. He pointed out that “[i]f we only carry out economic reforms without political ones, our economic reforms will not succeed” (Quoted in Yu 2015).

The mid-1980s was a time when the calls from reformers for the separation of the Party and State were strong, and the Party and government were receptive to such calls. Thus the Political Report delivered at the 13th Party Congress in 1987 explicitly called for the separation of the Party and its functions from the government, and determined that such a separation should be implemented as the first priority in political reform (Zhao 1987). The crackdown on the June 4th (1989) democratic movement, however, led to the immediate cessation of political reform and the re-introduction of a repressive regime.

Nonetheless, heated discussions and debates on political reforms, especially the separation of the Party and the State continued; especially so when the phrase ‘Ruling the Country according to Law’ was incorporated into Article 5 of the Constitution in 1999.⁴ Even though political reforms made little headway and were constantly lagging behind economic reforms and development, it is generally accepted that the Party and the

State are two separated authorities, each with their own responsibilities in line with the ideas outlined in Deng Xiaoping’s speech of 1980.

It is worthwhile pointing out that Deng Xiaoping did manage to make some significant constitutional changes and arrangements in the early 1980s. Thus all explicit constitutional provisions in the 1975 and 1978 Constitutions—which declared that the Party was the ‘core of leadership’ and that supporting the Party leadership was a constitutional obligation— were removed from the 1982 Constitution (Articles 2 & 3 of both the 1975 and 1978 Constitutions, Article 26 of the 1975 Constitution, and Article 56 of the 1978 Constitution). This led to the Party only appearing in the Preamble of the 1982 Constitution. The requirement that the Premier of the State Council be nominated by the Central Committee of the Party was also dropped (Article 17 of the 1975 Constitution and Article 22 of the 1978 Constitution). Further, a State Central Military Commission was established to command the armed forces.⁵ This establishment nominally makes the armed forces the army of the State, not that of the Party. Although such changes to the Constitution may not have changed the nature of Party control over State affairs⁶—indeed there is the argument that it is the power of the Party to recommend (though not directly to make) the appointment of State leaders (Guo 1994, 6)—it changed the mechanism of control, thus making it possible for a gradual separation of the Party and State, in the sense that Party policies would have to be translated into State law through legal procedures, and State powers would only be exercised by State mechanisms as defined by the Constitution,⁷ at least in appearance.

In short, Deng Xiaoping made sure that State powers would only be exercised by State authorities in accordance with legal procedures, and the Communist Party would mostly operate behind the scene, guiding, supporting, and supervising the State authorities in the exercise of State powers, with the exception that the Party maintains its direct control over the armed forces, media (i.e., propaganda in communist terminology), and personnel (Chen 2016a; McGregor 2012; Callick 2013).

Xi Jinping came to power on the back of 35 years of economic success in China. This economic success led to strong confidence among the new leadership in asserting China’s own model of governance which is now being promoted as a potential global governance model (see note 2). As a result, the overwhelming theme of the 2013 and 2014 CPC Decisions is to reclaim direct authority of the Party over all State affairs.

In terms of legal reforms, the 2014 Decision made it crystal clear that the Party shall take charge ofthe overall state of the country and coordinate all sides in the functioning of the People’s Congresses, governments, political consultative conferences, and trial and prosecutorial authorities, and that Party leadership must penetrate into the entire process and all aspects of “Ruling the Country according to Law” (2014 Party Decision, para. 8). On the surface, one might say that the 2014 Decision perhaps makes no radical departure from the CPC’s view that it is the de facto leader in the Chinese polity. However, many emerging trends have suggested otherwise.

First, the integration of the Party with the State has now been brought into the open, and the Party-State relationship has effectively regressed back to the 1970s in terms of separation of the two authorities. Further, the Party is firmly in the driver’s seat, designing not only principles but also details for reforms or implementation of reforms. Thus, a Leading Group on Comprehensively Deepening Reform, headed by Xi Jinping, was established to design, coordinate, promote, and implement reforms (2013 Party Decision, para. 58).⁸ As of February 2018, the Leading Group had convened 38 meetings, adopting some 365 documents containing various reform packages and outlining 357 key reform tasks and 1,500 specific reform measures, ranging from its own working procedures to law-making programs for the NPC, from cultural management reform to judicial reform, and from soccer administrative reform to financial system reform, and from Party development and reform to designs for the 13th Five-Year social and economic development plan, and covering all national affairs and local experiments in political, legal, social, cultural, environmental, Party-building, the military, and national defence areas.⁹ Essentially, Xi’s reforms intend to explore new mechanisms for direct Party control over not only the State structure and the so-called mass organisations (such as the union, women’s association, etc.), but also those that had earlier been separated from the Party, such as the State- owned enterprises (Chen 2016b).

Second, as mentioned earlier, State powers are supposedly exercised through State mechanisms while the Party remains in the background. This fundamental principle is being eroded quietly and rapidly. The 2013 Party Decision announced that the CPC would establish a Central Commission on State Security (an authority of the Central Committee of the Party, not the State), without providing any details. In January 2014, the Politburo announced that the Central Commission on State Security was established, with Xi Jinping as its Chairman.¹¹ For this purpose, security is broadly interpreted to include political, military, economic, and social security, which clearly overlaps with social order and stability that are managed by State authorities (Xinhua 2014d). In July 2015, the State Security Law was adopted. Article 44 of the Law grants the Central Commission on State Security the power to establish and coordinate a national security system, and Article 63 of the Law further grants the Commission the power to deploy and manage State emergency measures and responses when national security is endangered. The State Security Law thus, for the first time in post-Mao China, grants a Party authority State powers and allows such powers to be exercised directly by a Party authority—a situation that only existed during the ‘Cultural Revolution'. Clearly, the Party has now finally decided to walk out of the shadows by assuming directly some of the most critical powers of the State—the public power to handle State security and emergency issues.

The most blatant disregard for the separation of the Party and the State has been the establishment of the State Supervision Commissions. Theoretically, this Commission (and Commissions at all levels of government) is an authority that merges all anti-corruption authorities in China into one unified authority. In reality, it is a combined authority of the CPC (its Inspection Commissions) and the newly established State anti-corruption authorities. By combining the Party and State authorities into one entity (so-called ‘one entity with two names'), it legitimates the otherwise largely unlawful and unconstitutional practice of the CPC’s Disciplinary Commissions through authorisation by State law, including the revision of the Constitution and special legislation on the subject matter.¹² According to the Report delivered at the 19th National Congress of the CPC on 18 October 2017, the establishment of such combined authorities of the Party and the State is to be encouraged and developed from now on (Para. 6 (5) of the Party Report at the 19th National Congress of the CPC on 18 October 2017).

Finally, the Party, for the first time in Post-Mao China, has now managed to appear in a specific provision of the Constitution, instead of only being mentioned in its Preamble.¹³ By doing so, a constitutional foundation is established for the re-integration of the Party with the State, instead of the separation of the two and, as such, one of the most important aspects of Deng Xiaoping’s political reform is discarded and buried.