804 The China Quarterly continuation and development of the 1954 Constitution.'2 Yet in the context of Chinese politics it was the product of a series of reluctantly made compromises between contending groups that,for short-hand simplicity,we will call radicals"and"pragmatists."The former, often identified as "the Shanghai group"or "Maoists,"have been described as 'fundamentalists who insist that China must not sacrifice revolutionary values on the altar of economic development;'30 they have emphasized ideological purity and cultural and educational policies that seek to transform the "world outlook "of the masses.The latter, occasionally called "the Peking group,"tend in the short run to place rapid industrialization and economic development before ideological orthodoxy and socio-economic egalitarianism.They favour bureaucratic rationality and central planning over the mass mobilization and decentralization preferred by the radicals,and they stress educational policies that enhance professional,scientific and technical skills.Only with the greatest difficulty did these rival groups belatedly manage to agree upon a document,and the one that they did adopt did more to echo many of the developments of the preceding two decades than to regulate the contemporaneous exercise of power or to specify China's future tasks. The dramatic events of 1976 that began with the death of Premier Chou En-lai moved into top gear in April when the massive outpouring of sentiment to memorialize Chou turned Peking's Gate of Heavenly Peace into the site of the most serious rioting the capital had witnessed in many years.This led to the second removal of Vice-premier Teng Hsiao- p'ing and the appointment of Hua Kuo-feng as premier,an appointment that was made hastily without the approval of the National People's Congress,a requirement of the 1975 Constitution."With the death of Chairman Mao in September,which precipitated the arrest of the leaders of the Shanghai group,thereafter branded the"gang of four,"many observers began to wonder whether the triumphant pragmatists would translate their victory over the radicals into a new government constitution,one that would eliminate the earmarks of the significant, albeit incomplete,influence that the radicals had exercised over the existing document. Following the 11th Party Congress of August 1977,which promulgated a new Party charter as part of the effort to extirpate'the poison of the gang of four,"'and the second re-emergence of Teng Hsiao-p'ing,it became clear that another government constitution was 29.Chang Ch'un-ch'iao,"Report on the revision of the constitution,"in Documents of the First Session of the Fourth National People's Congress of the People's Republic of China(Peking:Foreign Languages Press,1975),p.36. 30.Kenneth Lieberthal,"The internal political scene,"Problems of Communism, Vol.XXIV (May-June 1975),pp.1,5-6.It is not clear to me whether Lieberthal's third group,the military,really constituted a coherent category regarding the questions discussed here. 31.See Article 17
804 The China Quarterly continuation and development of the 1954 Constitution."29 Yet in the context of Chinese politics it was the product of a series of reluctantly made compromises between contending groups that, for short-hand simplicity, we will call " radicals " and " pragmatists." The former, often identified as " the Shanghai group " or " Maoists," have been described as " fundamentalists who insist that China must not sacrifice revolutionary values on the altar of economic development;"30 they have emphasized ideological purity and cultural and educational policies that seek to transform the " world outlook " of the masses. The latter, occasionally called " the Peking group," tend in the short run to place rapid industrialization and economic development before ideological orthodoxy and socio-economic egalitarianism. They favour bureaucratic rationality and central planning over the mass mobilization and decentralization preferred by the radicals, and they stress educational policies that enhance professional, scientific and technical skills. Only with the greatest difficulty did these rival groups belatedly manage to agree upon a document, and the one that they did adopt did more to echo many of the developments of the preceding two decades than to regulate the contemporaneous exercise of power or to specify China's future tasks. The dramatic events of 1976 that began with the death of Premier Chou En-lai moved into top gear in April when the massive outpouring of sentiment to memorialize Chou turned Peking's Gate of Heavenly Peace into the site of the most serious rioting the capital had witnessed in many years. This led to the second removal of Vice-premier Teng Hsiaop'ing and the appointment of Hua Kuo-feng as premier, an appointment that was made hastily without the approval of the National People's Congress, a requirement of the 1975 Constitution.3l With the death of Chairman Mao in September, which precipitated the arrest of the leaders of the Shanghai group, thereafter branded the " gang of four," many observers began to wonder whether the triumphant pragmatists would translate their victory over the radicals into a new government constitution, one that would eliminate the earmarks of the significant, albeit incomplete, influence that the radicals had exercised over the existing document. Following the 11th Party Congress of August 1977, which promulgated a new Party charter as part of the effort to extirpate " the poison of the gang of four," and the second re-emergence of Teng Hsiao-p'ing, it became clear that another government constitution was 29. Chang Ch'un-ch'iao, " Report on the revision of the constitution," in Documents of the First Session of the Fourth National People's Congress of the People's Republic of China (Peking: Foreign Languages Press, 1975), p. 36. 30. Kenneth Lieberthal, " The internal political scene," Problems of Communism, Vol. XXIV (May-June 1975), pp. 1, 5-6. It is not clear to me whether Lieberthal's third group, the military, really constituted a coherent category regarding the questions discussed here. 31. See Article 17
China's Changing Constitution 805 indeed on the way.Yeh Chien-ying,chairman of the Standing Committee of the NPC,stated in his report on the draft of the 1978 Government Constitution that the smashing of the "gang of four" marked the end of the Cultural Revolution and the beginning of a new period of development that required a new fundamental law to meet its needs.2 Although the adoption of the 1978 Constitution of 60 articles by the Fifth NPC did not stimulate an educational campaign comparable to that of 1954,the gradually unfolding nationwide effort to disseminate the new principles is proving to be considerably greater than that of 1975. Nevertheless,even among the leaders of the pragmatist camp there appear to be varying degrees of enthusiasm for,or at least preoccupation with,the 1978 Constitution,the enactment of which Yeh Chien-ying characterized as'a major event in the political life of our people."4 It is not possible here to scrutinize every provision of this most recent constitution and contrast it with its predecessors.It is feasible,however, to inquire briefly into three aspects of particular interest to students of law and government:property relations,institutional restraints upon the exercise of executive power and analogues to a bill of rights. 1978 Version:Property Property relationships alone could not have provided an important enough stimulus for enacting a new constitution,because in this respect the pragmatists had been surprisingly successful in the 1975 Constitution.Thus the 1978 version made relatively few changes. According to Marxist analysis,the essential features of every society are determined by its economic base,that is,its property relationships. Because the People's Republic had virtually completed the collectivization of the means of production in agriculture,industry and commerce by the end of 1960,China had left the "new democracy" stage of development and entered the socialist stage.Yet until 1975 the constitution,the most obvious manifestation of what Marxists call the superstructure,was not altered to reflect the major changes in the economic base.As Yeh Chien-ying's report on the 1978 draft Constitution noted:"This great victory [socialist transformation]was already recorded in the existing [1975]constitution."Its property provisions had belatedly confirmed the economic transformation. In 1975 there was no longer a need to retain the 1954 Constitution's limited protection of capitalist ownership,because capitalism was a thing of the past.Similarly,there was no need for further reference to the peasant's right to own the means of production.However,because some individual working people in non-agricultural pursuits-handicraftsmen 32.Yeh Chien-ying,"Report on the revision of the constitution,"1 March 1978,in Documents of the First Session of the Fifth NPC,pp.173,176-77. 33.See'Socialist legal system,"China News Analysis,No.1123(16 June 1978),p.7. 34.Yeh Chien-ying,"Report on the revision of the constitution,"p.212. 35.1bid.p.202
China's Changing Constitution 805 indeed on the way. Yeh Chien-ying, chairman of the Standing Committee of the NPC, stated in his report on the draft of the 1978 Government Constitution that the smashing of the " gang of four " marked the end of the Cultural Revolution and the beginning of a new period of development that required a new fundamentalaw to meet its needs. 3 2 Although the adoption of the 1978 Constitution of 60 articles by the Fifth NPC did not stimulate an educational campaign comparable to that of 1954, the gradually unfolding nationwide effort to disseminate the new principles is proving to be considerably greater than that of 1975. Nevertheless, even among the leaders of the pragmatist camp there appear to be varying degrees of enthusiasm for, or at least preoccupation with, the 1978 Constitution,33 the enactment of which Yeh Chien-ying characterized as " a major event in the political life of our people." 34 It is not possible here to scrutinize every provision of this most recent constitution and contrast it with its predecessors. It is feasible, however, to inquire briefly into three aspects of particular interest to students of law and government: property relations, institutional restraints upon the exercise of executive power and analogues to a bill of rights. 1978 Version: Property Property relationships alone could not have provided an important enough stimulus for enacting a new constitution, because in this respect the pragmatists had been surprisingly successful in the 1975 Constitution. Thus the 1978 version made relatively few changes. According to Marxist analysis, the essential features of every society are determined by its economic base, that is, its property relationships. Because the People's Republic had virtually completed the collectivization of the means of production in agriculture, industry and commerce by the end of 1960, China had left the " new democracy " stage of development and entered the socialist stage. Yet until 1975 the constitution, the most obvious manifestation of what Marxists call the superstructure, was not altered to reflect the major changes in the economic base. As Yeh Chien-ying's report on the 1978 draft Constitution noted: " This great victory [socialist transformation] was already recorded in the existing [1975] constitution."35 Its property provisions had belatedly confirmed the economic transformation. In 1975 there was no longer a need to retain the 1954 Constitution's limited protection of capitalist ownership, because capitalism was a thing of the past. Similarly, there was no need for further reference to the peasant's right to own the means of production. However, because some individual working people in non-agricultural pursuits - handicraftsmen 32. Yeh Chien-ying, " Report on the revision of the constitution," 1 March 1978, in Documents of the First Session of the Fifth NPC, pp. 173, 176-77. 33. See "Socialist legal system," ChinaNewsAnalysis, No. 1123 (16 June 1978), p. 7. 34. Yeh Chien-ying, " Report on the revision of the constitution," p. 212. 35 . Ibid . p . 202
806 The China Quarterly and peddlers,for example -are still not collectivized,the 1975 Constitution authorized the state to allow them to engage in individual labour in ways that involve no exploitation of others,that are within the limits permitted by law and that are"under unified arrangement"'by basic-level organizations.36 The limited constitutional tolerance of this vestige of the individual entrepreneur was balanced,however,by the admonition that "these individual labourers should be guided onto the road of socialist collectivization step by step."Article 5 of the new constitution retains this provision in substance and in almost identical language. The new Article 5 also reiterates its predecessor's statement that "there are mainly two kinds of ownership of the means of production ..at the present stage.''One is "socialist ownership by the whole people,''that is,state ownership.The second is "socialist collective ownership by the working people,"that is,collectively-owned communes and other organizations.Presumably the phrase "at the present stage''implicitly contemplates future evolution towards communism through the transformation of collective ownership to state ownership. The property provisions of the 1975 Constitution had revealed three clear instances of the influence of the pragmatists.In describing the three-level ownership system that"generally "prevails"at the present stage"'in the rural communes,Article 7 had noted that the production team-the basic-level organization below the production brigade and the commune-is "the basic accounting unit.''This gave constitutional status,however temporary,to an arrangement that offers team members a more direct financial incentive to be productive than if their efforts were submerged in the larger brigade or commune as the accounting unit, as has sometimes been the case.Article 7 of the 1978 Constitution retains this language but adds-perhaps to show the ideological orthodoxy of the pragmatists:"A production brigade may become the basic accounting unit when its conditions are ripe."Yeh Chien-ying's report notes that some brigades have already become accounting units and urgesdynamic but steady policies and steps'to encourage others to do so when conditions are appropriate.3s The new Article 7 also retains the second of the pragmatists'1975 triumphs-the provision that "commune members may farm small plots of land for personal needs,engage in limited household side-line production,and in pastoral areas keep a limited number of livestock for personal needs.''However,in 1978 as in 1975 the proviso is attached that this may only be done if"the absolute predominance of the collective economy of the people's commune is ensured,"that is,so long as the peasants do not neglect their principal labour on behalf of the collective. Nevertheless,in 1975 this constitutional concession to personal self- 36.Article 5 37.Ibid. 38.Yeh Chien-ying,Report on the revision of the constitution,"p.204
806 The China Quarterly and peddlers, for example - are still not collectivized, the 1975 Constitution authorized the state to allow them to engage in individual labour in ways that involve no exploitation of others, that are within the limits permitted by law and that are " under unified arrangement " by basic-level organizations.36 The limited constitutional tolerance of this vestige of the individual entrepreneur was balanced, however, by the admonition that " these individual labourers should be guided onto the road of socialist collectivization step by step."37 Article 5 of the new constitution retains this provision in substance and in almost identical language. The new Article 5 also reiterates its predecessor's statement that " there are mainly two kinds of ownership of the means of production . . . at the present stage." One is " socialist ownership by the whole people," that is, state ownership. The second is " socialist collective ownership by the working people, " that is, collectively-owned communes and other organizations. Presumably the phrase " at the present stage " implicitly contemplates future evolution towards communism through the transformation of collective ownership to state ownership. The property provisions of the 1975 Constitution had revealed three clear instances of the influence of the pragmatists. In describing the three-level ownership system that " generally " prevails " at the present stage " in the rural communes, Article 7 had noted that the production team - the basic-level organization below the production brigade and the commune - is " the basic accounting unit." This gave constitutional status, however temporary, to an arrangement that offers team members a more direct financial incentive to be productive than if their efforts were submerged in the larger brigade or commune as the accounting utwit, as has sometimes been the case. Article 7 of the 1978 Constitution retains this language but adds - perhaps to show the ideological orthodoxy of the pragmatists: " A production brigade may become the basic accounting unit when its conditions are ripe." Yeh Chien-ying's report notes that some brigades have already become accounting units and urges " dynamic but steady policies and steps " to encourage others to do so when conditions are appropriate. 3 8 The new Article 7 also retains the second of the pragmatists' 1975 triumphs - the provision that " commune members may farm small plots of land for personal needs, engage in limited household side-line production, and in pastoral areas keep a limited number of livestock for personal needs." However, in 1978 as in 1975 the proviso is attached that this may only be done if " the absolute predominance of the collective economy of the people's commune is ensured," that is, so long as the peasants do not neglect their principalabour on behalf of the collective. Nevertheless, in 1975 this constitutional concession to personal self- 36. Article 5. 37. Ibid. 38. Yeh Chien-ying, " Report on the revision of the constitution," p. 204
China's Changing Constitution 807 interest was surprising because of the bitter efforts of the radicals to do away with such selfish practices in the past,efforts that had been successful on a number of occasions.Now that it is the radicals who have been done away with,the provision has plainly been retained as part of the programme for satisfying the peasants and stimulating their production,and the current version,by omitting its predecessor's additional condition that private production not hinder "the development of the collective economy,but only its "absolute predominance,"seems to give the peasants greater latitude than before. During the euphoric days of the Great Leap Forward in 1958-59,when the masses were mobilized in the hope of achieving utopian goals,the commune was the accounting unit,and the farming of"small plots of land for personal needs''and similar pursuits were banned and actually terminated.Moreover,in some places individual incentives were also blunted by a system of distributing food and other compensation to peasants without regard to the usual linking of income to the number of work points an individual earned.The pragmatists won a third victory in Article 9 of the 1975 Constitution,which repudiated this visionary"free distribution'by flatly enunciating the classical Marxian principles for the era of socialism:"He who does not work,neither shall he eat 'and "from each according to his ability,to each according to his work.'' Yeh Chien-ying's report on the 1978 Constitution,which reaffirms these maxims in Article 10,leaves no doubt about the radicals'opposition to this provision.According to Yeh: The gang of four"slanderously alleged that "to each according to his work''is a capitalist principle.They attacked our system and policies of payment for labour which embody this principle as the use of material incentives as bait,and thus they undermined the application of this principle,dampened the working people's socialist enthusiasm and disrupted socialist production. Thus,for the present at least,constitutional blessing continues to be given to the maintenance of income differentials based on individual talent and effort.The attempt to enhance production by offering individual material incentives would founder,of course,if people's earnings,savings,homes and other items of personal use were arbitrarily taken away.Yet,despite the 1954 Constitution's protection of the right of citizens to own lawfully earned incomes,savings,houses and other means of life,'+this is precisely what happened to many persons in the countryside during the Great Leap Forward of 1958-59 and in the cities during the Cultural Revolution. The 1975 Constitution retained the earlier document's protection of individual ownership,but replaced the phrase "lawfully earned 39.Ibid.p.205.These maxims appeared in Article 12 of the 1936 U.S.S.R. Constitution,and Article 14 of the 1977 U.S.S.R.Constitution reiterates:"From each according to his ability,to each according to his work."Similarly,the concession securing the peasant's garden plot and related activities appeared in the 1936 U.S.S.R.Constitution, Article 7,and is retained in Article 13 of the 1977 version. 40.Article 11
China's Changing Constitution 807 interest was surprising because of the bitter efforts of the radicals to do away with such selfish practices in the past, efforts that had been successful on a number of occasions. Now that it is the radicals who have been done away with, the provision has plainly been retained as part of the programme for satisfying the peasants and stimulating their production, and the current version, by omitting its predecessor's additional condition that private production not hinder " the development " of the collective economy, but only its " absolute predominance," seem.s to give the peasants greater latitude than before. During the euphoric days of the Great Leap Forward in 1958-59, when the masses were mobilized in the hope of achieving utopian goals, the commune was the accounting unit, and the farming of " small plots of land for personal needs " and similar pursuits were banned and actually terminated. Moreover, in some places individual incentives were also blunted by a system of distributing food and other compensation to peasants without regard to the usual linking of income to the number of work points an individual earned. The pragmatists won a third victory in Article 9 of the 1975 Constitution, which repudiated this visionary " free distribution " by flatly enunciating the classical Marxian principles for the era of socialism: " He who does not work, neither shall he eat " and " from each according to his ability, to each according to his work." Yeh Chien-ying's report on the 1978 Constitution, which reaffirms these maxims in Article 10, leaves no doubt about the radicals' opposition to this provision. According to Yeh: The " gang of four " slanderously alleged that " to each according to his work" is a capitalist principle. They attacked our system and policies of payment for labour which embody this principle as the use of material incentives as bait, and thus they undermined the application of this principle, dampened the working people's socialist enthusiasm and disrupted socialist production. 3 9 Thus, for the present at least, constitutional blessing continues to be given to the maintenance of income differentials based on individual talent and effort. The attempt to enhance production by offering individual material incentives would founder, of course, if people's earnings, savings, homes and other items of personal use were arbitrarily taken away. Yet, despite the 1954 Constitution's protection of " the right of citizens to own lawfully earned incomes, savings, houses and other means of life,"4? this is precisely what happened to many persons in the countryside during the Great Leap Forward of 1958-59 and in the cities during the Cultural Revolution. The 1975 Constitution retained the earlier document's protection of individual ownership, but replaced the phrase " lawfully earned 39. Ibid . p . 205 . These maxims appeared in Article 12 of the 1936 U . S . S . R . Constitution, and Article 14 of the 1977 U.S.S.R. Constitution reiterates: " From each according to his ability, to each according to his work. " Similarly, the concession securing the peasant's garden plot and related activities appeared in the 1936 U.S.S.R. Constitution, Article 7, and is retained in Article 13 of the 1977 version. 40. Article 1 1
808 The China Quarterly incomes"with the narrower "income from work,"4 perhaps to imply disapproval of income earned by means other than one's labour,as from interest on bank accounts,fixed interest ''that expropriated capitalists had been paid as compensation for surrendering their property,or dividends from the investments in the People's Republic that overseas Chinese had formerly been induced to make.Article 9 of the 1978 version restores the original protection.Presumably it represents a necessary reaffirmation of the security of one's personal property as part of the effort to guarantee citizens,including overseas Chinese,against a repetition of earlier unfortunate events.+2 This provision may only have credibility to the extent that the state assures restitution or compensation to persons who have been forced to yield their houses,household furnishings,bank accounts or other property.The fact that the 1978 Constitution-while authorizing citizens to complain against infringement of their rights-failed to reinstate the 1954 document's provision for the state to make compensation for such infringement cannot be tremendously reassuring.3 Nevertheless,at various times during the past two decades,restitution or compensation has been made to persons who have suffered property deprivations,4 and the present government is taking further steps to make amends.'5 A principal satisfaction of individual property ownership,of course, comes from the ability to transmit it to one's heirs.Yet the 1978 Constitution,like its immediate predecessor,fails to retain the 1954 prescription that "[t]he state protects the right of citizens to inherit 41.Article 9. 42.Article 54 of the new constitution specifically guarantees the just rights and interests not only of "overseas Chinese,"as in previous constitutions,but also of "their relatives,"that is,those actually residing in China.The Soviet Union has long struggled to define the boundary between earned and unearned income,and Article 13 of the 1977 Soviet Constitution maintains the distinction. 43.See the discussion in the text infra,after note 107 44.See,e.g.,Ezra Vogel,Canton under Communism (Cambridge,Mass.:Harvard University Press,1969),p.279,which reports efforts in 1960-61 to make at least partial restitution or compensation to peasants for property seized from them during the Great Leap Forward. 45.See,e.g.,Kirin purges gang follower,compensates victims,"Peking NCNA Domestic (28 April 1978),in FBIS-CHI-78-84(1 May 1978),LI,L4,which states that property taken from victimized persons was returned to them and that they were repaid wages that had been withheld.Chinese media have shown increasing concern about property deprivations such as failure to restore to their owners houses that have been requisitioned for a long time by the military.See"Liberation Army Daily on observance of law,discipline,"Peking Domestic Service(12 April 1978),in FBIS-CHI-78-74(17 April 1978),E6,E8.See also"Shantung provincial Party committee's united front department sends a letter to the Overseas Chinese Affairs Office of the State Council,"Jen-min jih-pao,(Jen-min)(People's Daily),19 July 1978,p.4,which recounts the two-year efforts of government agencies to oust a resistant cadre from a house of an overseas Chinese that he occupied long beyond his authorized tenancy
808 The China Quarterly incomes " with the narrower " income from work,''4l perhaps to imply disapproval of income earned by means other than one's labour, as from interest on bank accounts, " fixed interest " that expropriated capitalists had been paid as compensation for surrendering their property, or dividends from the investments in the People's Republic that overseas Chinese had formerly been induced to make. Article 9 of the 1978 version restores the original protection. Presumably it represents a necessary reaffirmation of the security of one's personal property as part of the effort to guarantee citizens, including overseas Chinese, against a repetition of earlier unfortunate events. 4 2 This provision may only have credibility to the extent that the state assures restitution or compensation to persons who have been forced to yield their houses, household furnishings, bank accounts or other property. The fact that the 1978 Constitution - while authorizing citizens to complain against infringement of their rights - failed to reinstate the 1954 document's provision for the state to make compensation for such infringement cannot be tremendously reassuring. 4 3 Nevertheless, at various times during the past two decades, restitution or compensation has been made to persons who have suffered property deprivations,44 and the present government is taking further steps to make amends. 45 A principal satisfaction of individual property ownership, of course, comes from the ability to transmit it to one's heirs. Yet the 1978 Constitution, like its immediate predecessor, fails to retain the 1954 prescription that " [t]he state protects the right of citizens to inherit 41. Article 9. 42. Article 54 of the new constitution specifically guarantees the just rights and interests not only of " overseas Chinese," as in previous constitutions, but also of " their relatives," that is, those actually residing in China. The Soviet Union has long struggled to define the boundary between earned and unearned income, and Article 13 of the 1977 Soviet Constitution maintains the distinction. 43. See the discussion in the text infra, after note 107. 44. See, e.g., Ezra Vogel, Canton under Communism (Cambridge, Mass.: Harvard University Press, 1969), p. 279, which reports efforts in 1960-61 to make at least partial restitution or compensation to peasants for property seized from them during the Great Leap Forward. 45. See, e.g., " Kirin purges gang follower, compensates victims," Peking NCNA Domestic (28 April 1978), in FBIS-CHI-78-84 (1 May 1978), L1, L4, which states that property taken from victimized persons was returned to them and that they were repaid wages that had been withheld. Chinese media have shown increasing concern about property deprivations such as failure to restore to their owners houses that have been requisitioned for a long time by the military. See " Liberation Army Daily on observance of law, discipline," Peking Domestic Service (12 April 1978), in FBIS-CHI-78-74 (17 April 1978), E6, E8. See also " Shantung provincial Party committee's united front department sends a letter to the Overseas Chinese Affairs Office of the State Council," Jen-min jih-pao, (Jen-min) (People'sDaily), 19 July 1978, p. 4, which recounts the two-year efforts of government agencies to oust a resistant cadre from a house of an overseas Chinese that he occupied long beyond his authorized tenancy