While Chinese Communist Party (CCP) officials met for their annual two sessions, discussing the upcoming economic Five-Year Plan, international coverage routinely described the National People’s Congress (NPC) as a “rubber stamp” parliament. The characterization of a parliament with no substantive role fits broadly with the notion that legal processes in China are but a performative act. But does the notion stand up to scrutiny?
One place to examine the merits of this view is China’s legal system, mainly, its constitution. One of the foundational features of the current constitutional setup (ratified in 1982) is the separation of the Party from the State. Or in other words: the existence of two parallel constitutions.
In 2018, however, this separation was undercut when the Party established a new anti-corruption agency: The National Supervision Commission (NSC). Unlike its predecessors, it is not a Party institution but a State institution–meaning its purview merges the Party-State into one anti-corruption framework. That same year, the State Constitution had been amended to read that the CCP’s leadership is “the most essential feature of socialism with Chinese characteristics” and “the party leads everything.”
These two developments would seem to corroborate the rubber stamp view of China’s legal processes. If the establishment of the NSC goes against China’s constitutional premise, does this not render the Constitution a dead letter? Especially in view of the 2017 amendments, which cemented the Party’s leadership as a constitutional goal, how could the constitution have any meaning distinct from the CCP?
Western and Chinese Constitutionalism: Apples and Pears
It is easy to see how one could conclude that China’s constitution is performative. Jon Elster of Columbia University captured the CCP’s legal conundrum perfectly: the CCP “has many sorts of power, but not the power to make itself powerless.” Or put more formally, the CCP lacks self-regulatory power, it lacks effective judicial review.
The inability to make itself powerless has long been acknowledged by the CCP. Ineffective regulatory agencies have led to rampant corruption in local governments. In the early 2000s, the CCP put forward a policy solution to alleviate this problem. Its strategy – soft centralization – consisted of combatting its juristic fragmentation by shifting the oversight powers of regulatory bureaucracies from local authorities to higher-level authorities.
As such, county administrations became supervised by prefecture governments, and prefecture governments became supervised by provincial governments. In an extensive analysis, Andrew Mertha of Cornell University, found that the cleavages that contribute to corruption merely shifted from the previous horizontal lines – between same-level agencies, e.g. regional-regionl or district-district – to the newly established vertical, or top-down, ones. It would almost seem like effective regulatory agency is intrinsically impossible within China’s system. That much is clear.
The question, however, is whether this is a meaningful metric for judging the efficacy of China’s constitution. Debates about regulatory prowess and judicial review often fail to account for China’s unique context–where the constitution’s political weight should not be measured by its ability to exercise judicial review.
As tempting as it may be, one cannot conclude that China’s constitution is a dead letter – it is not a meaningless document. Such judgements often stem from a misinterpretation of the role of the Chinese constitution. Unlike in Western democracies, the Chinese constitution is not poised with the goal of judicial review or ensuring judicial independence.
Instead, its primary role is to serve the governance interests of the CCP and its leadership. The constitution is not a dead letter, but a tool for the advancement of the CCP’s leadership.
What Does Chinese Constitutionalism Look Like?
To answer this question, we have to go back to Mao Zedong. His notion of constitutionalism was unlike the Western or Soviet one, as its primary aim was to promote class struggle. As Mao wrote in 1940, it is “the dictatorship of several revolutionary classes united against the traitor and reactionaries.”
Although this is no longer the case, it highlights the path dependency of what Stony Brook University’s Saïd Arjomand calls ideological constitutions. Their primary aim is to foster social change in accordance with a revolutionary ideology–not separation of power, nor judicial review. In such instances, it is possible for constitutions to exist without “constitutionalism” in the Western sense.
The revolutionary aim of the current constitution has shifted from class struggle to the preservation of the CCP’s influence. This has made the Chinese constitution entirely sui generis.
The most crucial feature of state-party constitutionalism is the 1982 constitution’s separation of the Party from the State. This division, however, has not led to a separation of powers but a dual normative system where two sets of rules co-exist and the Party enjoys a domineering influence over the state. Penn State’s Larry Backer has coined this state-party constitutionalism.
The interaction between these two parallel systems is characterized by the Party’s balancing act between delegation of tasks to the state and retaining the final word. As such, a better term for this separation is division of labor. This system effectively retains the Communist governance principle of “democratic centralism”, whilst enabling the administrative functioning of the state. It also debunks the notion that the CCP has “unconstrained power and can penetrate any aspect and citizen’s rights” – which Hong Kong University’s He Xin rightly labels “problematic.”
To recap: the party’s absolute leadership leads to division of labor, not division of power; its absolute leadership does not entail absolute control; and the party retains the final say on crucial issues.
Instances Where the Constitution Advanced the Party’s Primacy
The primary role of the Chinese constitution is to serve the governance interests of the CCP and its leadership. The efforts to engrain this understanding into the party are not a recent phenomenon – and recent history is not short of examples.
Let’s take a laundry list approach first, all sharing the common thread of CCP primacy. In 2006 CCP officials launched a campaign against Western rule of law norms, underscoring loyalty to the Party as the guiding principle. In 2008, Wang Shejun, a loyalist CCP member without any legal experience, was appointed the head of the Supreme People’s Court. In 2015, the Party’s historic 4th Plenum of the 19th Party Congress stipulated that “the party leadership and socialist rule of law are identical.”
Most recently, in April 2020, this goal has been reiterated through a document released by the Supreme People’s Court’s document stating that its “most important [judicial] goal is to uphold and implement the Party’s absolute leadership of the courts and persist in putting the Party’s political construction first.”
As soon as one starts digging into the fabric of Chinese constitutionalism, one quickly finds that this is a systematic effort to advance the Party’s supremacy through the constitution.
For instance, the absolute leadership of the Party has been increasingly formalized in the constitution. This development is evident in two cases. The first modification was in the 2017 amendments to the Party constitution’s preamble. Whereas in 2012 the party’s leadership was “political, ideological and organizational” – the 2017 version establishes the CCP’s leadership as “the most essential feature of socialism with Chinese characteristics” and expands its leadership to all domains: “the party leads everything”.
Another case pertains to the State constitution, where in article 1 one finds the very same words inserted from the party constitution: the leadership of the CCP is “the most essential feature of socialism with Chinese characteristics.” Interestingly, the changes in the state constitution were preceded by the changes in the party constitution–a sequence of events which also highlights the prevalence of the party over the state.
Beyond the Constitution: How Institutions Promote the CCP’s Primacy
We have seen how the constitution establishes the CCP’s leadership on paper. But what about in practice? For this we can turn to institutions.
Let’s begin with the anti-corruption agency. The inclusion of the National Supervision Commission into the State constitution illustrates neatly how the party’s division of labor does not entail a division of power. This was a particularly striking move as it merged the Central Commission for Discipline Inspection (a party organization) with the People’s Protectorate (a state organization) in order to bolster anti-corruption efforts. Thereby, encroaching the Party’s influence over the state.
Although it is too early to tell how effective this new institution will be in monitoring corruption, Chinese law professors Li Li and Wang Peng have already emphasized how this system strengthens party members’ influence, since it allows supervisory commission members at provincial, city and county level to be on the standing committee of the CCP at the equivalent level. So, a province level supervisor will also be included in the province’s most influential political institution, the standing committee–ditto for the respective administrative levels.
Another and final institutional example of CCP’s primacy being advanced through law is the bolstering of the party’s institution on Political-Legal Affairs Committee (PLAC). The PLAC is another novel legal institution, charged with “monitoring all the coercive departments within its jurisdiction” – including the Supreme People’s Courts, the Supreme People’s Procuracy, the Public Security Bureau, the Ministry of Justice, the State Security Bureau, as well as provincial institutions, such as the High Courts, High Procuratorate or Justice Bureaus.
Again, the primacy of the party is explicitly laid out in its mandate. Article 1 stipulates that its main task is to “strengthen the Party’s absolute leadership of political-legal work.” Similarly, Article 12 stipulates that among its main duties is to “uphold the Party’s absolute leadership over political and legal work.” Article 6 enumerates its principles, the first of which is to uphold “the absolute leadership of the Party and implementing the Party’s leadership in all aspects and the whole process of political-legal work.” In fact, the document as a whole contains 9 mentions of upholding or strengthening the Party’s leadership.
These redundancies and repetitions are indicative of how central the Party’s leadership and interest are for the legal system as a whole, including constitutional oversight. Article 7 defines its mandate as “implement[ing] absolute leadership over political-legal work.” Article 13 explicates its quasi-omnipotent oversight of judicial organs as it stipulates that the PLAC is to “guide, support, and oversee political-legal units carrying out work within the scope of their duties as provided by the constitution and laws” (emphasis added).
The explicit allusion to the constitution highlights how, by using the constitution as a legal backbone, institutions are able to promote and preserve the Party’s leadership. In practice, it is through Party institutions, such as the Political-Legal Affairs committee that the constitution is enforced and interpreted. And with it, the Party’s primacy.
The Verdict: Is the Letter Dead or Alive?
The Chinese constitution is not a dead letter. This notion stems from the inadequacy of using Western concepts in discussing the Chinese constitution. Unlike its Western democratic counterpart, the Chinese constitution is not designed to restrain power and it does not conceive the state and its population as a dichotomy.
Moreover, Chinese constitutionalism is bound to a revolutionary aim, which has now been revised to preserving the Party’s influence. This influence has been increased by gradually recommitting legal institutions responsible for constitutional oversight to supporting the Party’s primacy.
Despite these moves, China’s constitution is a meaningful and crucial document in Chinese politics. It is meaningful because it enables and in fact promotes the Communist Party’s governance.
Without it, Xi Jinping’s abolition of term limits – which, though counter to democratic norms, has been enshrined in written legislation – would hold no authority. Without it, the Party’s efforts to combat internal corruption would stand on even thinner ground. The Party’s 2012 and 2017 amendments of the Party and State constitutions to include its own preservation as a codified goal show that its relevance has only increased in the recent past.
Policy makers turn to the constitution to set the political rules. These rules just happen to be advancing the Party’s leadership. And, in this sense, the letter is very much alive.
Dário K. Moreira is a graduate in Contemporary Chinese Studies from the University of Oxford.