ideological purchase that these theories still hold,at least among some scholars and officials,and also the vested power interests of Party and State. Yet such proposals also carry one crucial advantage:the decline of the orthodox theory. Just as Marxism has declined both as an organizing principle for Chinese society as a whole,the influence,ideological purchase,and overall authority of Marxist legal theory has also dramatically declined over the nearly three decades since reform and opening began. This change has been the most pronounced in academia.In the early 1980s,Marxist legal theory was still the only game in town,and Western theories of state organization and constitutionalism were viewed with outright hostility.Today,at least in academic sectors, the tables have turned:where Chinese constitutional law textbooks once heaped scorn on Western constitutional law theories,they now embrace them;where most texts spent dozens of pages extolling the virtues of Marxist legal theory,they now make only obligatory,minimal reference to the orthodox theory.Even the party-state,itself seemingly of two minds over its own founding philosophy,cannot be counted on to regularly and convincingly articulate to the public the orthodox view;instead,it continues to try to fuse the old with the new,in ways,that,as of this writing,have yet to produce encouraging or coherent results. As a result,the Chinese constitution,intelligible and reasonably coherent when read in light of its theoretical underpinnings,has become indeterminate,capable of multiple readings.Unmoored from its original theoretical basis,the Chinese constitution has become a perhaps somewhat unlikely tool for debate over the future of Chinese legal reform.Yet before we look at constitutional rereadings,we must look the system,still very much in place,that was created under the orthodox theory. II. Section Two:historical background and current constitutional framework The "orthodox account" Since the founding of the People's Republic in 1949,China has had four separate constitutions,promulgated in 1954,1975,1978,and 1982.Even before the founding of the People's Republic,in the summer of 1949,Stalin urged senior Chinese leader Liu Shaoqi,then on a visit to Moscow representing the CCP,to create a constitution,one that 26 Although the influence of the shift in scholarly opinion is difficult to quantify,it nonetheless should not be overlooked;the impact of a definite change in outlook and theoretical approach among constitutional law scholars-at least at China's top law schools in Beijing,Shanghai,and elsewhere-is a significant development,one which almost certainly have an impact on constitutional development in China over the longer term.As one prominent US constitutional law scholar has pointed out,"(s)cholars and commentators wield a kind of power,too-not the direct coercive force wielded by courts and the police, but a power to affect belief and thus,to some degree,to shape social reality."Laurence H.Tribe, Constitutional Choices,Harvard University Press,1985,p.7. 10
10 ideological purchase that these theories still hold, at least among some scholars and officials, and also the vested power interests of Party and State. Yet such proposals also carry one crucial advantage: the decline of the orthodox theory. Just as Marxism has declined both as an organizing principle for Chinese society as a whole, the influence, ideological purchase, and overall authority of Marxist legal theory has also dramatically declined over the nearly three decades since reform and opening began. This change has been the most pronounced in academia. In the early 1980s, Marxist legal theory was still the only game in town, and Western theories of state organization and constitutionalism were viewed with outright hostility. Today, at least in academic sectors, the tables have turned: where Chinese constitutional law textbooks once heaped scorn on Western constitutional law theories, they now embrace them; where most texts spent dozens of pages extolling the virtues of Marxist legal theory, they now make only obligatory, minimal reference to the orthodox theory.26 Even the party-state, itself seemingly of two minds over its own founding philosophy, cannot be counted on to regularly and convincingly articulate to the public the orthodox view; instead, it continues to try to fuse the old with the new, in ways, that, as of this writing, have yet to produce encouraging or coherent results. As a result, the Chinese constitution, intelligible and reasonably coherent when read in light of its theoretical underpinnings, has become indeterminate, capable of multiple readings. Unmoored from its original theoretical basis, the Chinese constitution has become a perhaps somewhat unlikely tool for debate over the future of Chinese legal reform. Yet before we look at constitutional rereadings, we must look the system, still very much in place, that was created under the orthodox theory. II. Section Two: historical background and current constitutional framework The “orthodox account” Since the founding of the People’s Republic in 1949, China has had four separate constitutions, promulgated in 1954, 1975, 1978, and 1982. Even before the founding of the People’s Republic, in the summer of 1949, Stalin urged senior Chinese leader Liu Shaoqi, then on a visit to Moscow representing the CCP, to create a constitution, one that 26 Although the influence of the shift in scholarly opinion is difficult to quantify, it nonetheless should not be overlooked; the impact of a definite change in outlook and theoretical approach among constitutional law scholars – at least at China’s top law schools in Beijing, Shanghai, and elsewhere – is a significant development, one which almost certainly have an impact on constitutional development in China over the longer term. As one prominent US constitutional law scholar has pointed out, “(s)cholars and commentators wield a kind of power, too – not the direct coercive force wielded by courts and the police, but a power to affect belief and thus, to some degree, to shape social reality.” Laurence H. Tribe, Constitutional Choices, Harvard University Press, 1985, p. 7
would be based on the Soviet approach.27Liu and the Chinese leadership took Stalin's advice,modeling their document after the 1936 Soviet constitution.2 In many ways,the current 1982 constitution merely returned China to the status quo ante,and was the final step away from the 1975 document,which was widely viewed as an"ultra-leftist" product of the Cultural Revolution.What follows is a description of the accepted view of the constitutional structure of the People's Republic of China,or what I refer to as the "orthodox account"of the state power structure as laid out in the constitution.29 Although some recent amendments have reflected at least a nascent trend away from the Soviet model,virtually all key elements of the 1982 constitution reflect the influence of the Soviet approach to constitutionalism and the division-or,more accurately,the unification-of state power.In general,the institutional reforms that the government has enacted over the past two decades have been geared toward giving substance to the constitutional framework,especially in terms of allowing the NPC to actually exercise the powers allocated to it under the constitution,3 rather than rethinking or radically altering the current allocation of powers.31 As noted above,the constitution rejects a separation of powers approach,and instead vests supreme state authority in the hands of the legislature.32 Article 2 of the constitution states that"all power in the People's Republic...belongs to the people,"and that"(t)he organs through which the people exercise state power are the National People's Congress 27 Hu Jinguang,ed.,Textbook on Constitutional Law Principles and Cases(Xianfa Xue Yuanli yu Anli Jiaocheng),China People's University Press,2006,p.40.Stalin repeated his urgings to Mao during Mao's famous 1950 visit to the Soviet Union,and in 1952 even suggested a deadline of 1954 for the creation of a constitution and the holding of elections,in part as a means of deflecting outside criticism of the newly- founded People's Republic.Ibid. As one Western scholar has noted,all four of the post-1949 Chinese constitutions"were influenced by the Soviet example,especially the Stalin constitution on 1936."Edwards,Henkin,and Nathan,Human yther the omaldelined e constitution and the system in practice.Although the NPC is highest organ of state power,it meets too infrequently and is too large and unwieldy to exercise all of the powers granted to it under the constitution. In practice,the NPCSC and the State Council exercise a much higher degree of authority than the NPC itself.Although the NPC is no longer quite the docile rubber stamp that it once was,nor does it serve as a fully functioning legislature.The Communist Party also exercises significant influence and oversight over all major government decisions,despite the fact that it is granted no formal powers under the constitution. For a more detailed account of China's governmental structure as it operates in practice,see Saich,supra. Hsin-chi Kuan,"New Departures in China's Constitution,Studies in Comparative Communism,Vol. XVII,no.1,Spring 1984,53,58-59.According to Kuan,a key goal of the 1982 Constitution was to strengthen the NPC:"(t)he traditional balance of power,overconcentrated in the Party,is to be redressed in favor of the supreme organ of the state,the National People's Congress." For an optimistic assessment on the progress of NPC institutional refoms,seeMichael Wiliam Dowdle, "Of Parliaments,Pragmatism,and the Dynamics of Constitutional Development:The Curious Case of China,"35 NYUJILP 1(2002).According to Dowdle,"analyses of the developmental potential of China's present constitutional system still generally dismiss the constitutionalist implications of the NPC's development."Ibid.,at 6. 32 As one scholar has noted,the Chinese constitution is"a formalization of existing power configurations rather than an authentic institutional framework for adjusting relations between the political forces that compete for power in a dynamic relationship."Cohen,"China's Changing Constitution,"Harvard Law School Studies in East Asian Law,China:no.27,p.837. 11
11 would be based on the Soviet approach.27 Liu and the Chinese leadership took Stalin’s advice, modeling their document after the 1936 Soviet constitution.28 In many ways, the current 1982 constitution merely returned China to the status quo ante, and was the final step away from the 1975 document, which was widely viewed as an “ultra-leftist” product of the Cultural Revolution. What follows is a description of the accepted view of the constitutional structure of the People’s Republic of China, or what I refer to as the “orthodox account” of the state power structure as laid out in the constitution.29 Although some recent amendments have reflected at least a nascent trend away from the Soviet model, virtually all key elements of the 1982 constitution reflect the influence of the Soviet approach to constitutionalism and the division – or, more accurately, the unification – of state power. In general, the institutional reforms that the government has enacted over the past two decades have been geared toward giving substance to the constitutional framework, especially in terms of allowing the NPC to actually exercise the powers allocated to it under the constitution,30 rather than rethinking or radically altering the current allocation of powers.31 As noted above, the constitution rejects a separation of powers approach, and instead vests supreme state authority in the hands of the legislature.32 Article 2 of the constitution states that “all power in the People’s Republic… belongs to the people,” and that “(t)he organs through which the people exercise state power are the National People’s Congress 27 Hu Jinguang, ed., Textbook on Constitutional Law Principles and Cases (Xianfa Xue Yuanli yu Anli Jiaocheng), China People’s University Press, 2006, p. 40. Stalin repeated his urgings to Mao during Mao’s famous 1950 visit to the Soviet Union, and in 1952 even suggested a deadline of 1954 for the creation of a constitution and the holding of elections, in part as a means of deflecting outside criticism of the newlyfounded People’s Republic. Ibid. 28 As one Western scholar has noted, all four of the post-1949 Chinese constitutions “were influenced by the Soviet example, especially the Stalin constitution on 1936.” Edwards, Henkin, and Nathan, Human Rights in Contemporary China, Columbia University Press, 1986, p. 122 29 As with all legal systems, there are significant differences between the formal system as delineated in the constitution and the system in practice. Although the NPC is highest organ of state power, it meets too infrequently and is too large and unwieldy to exercise all of the powers granted to it under the constitution. In practice, the NPCSC and the State Council exercise a much higher degree of authority than the NPC itself. Although the NPC is no longer quite the docile rubber stamp that it once was, nor does it serve as a fully functioning legislature. The Communist Party also exercises significant influence and oversight over all major government decisions, despite the fact that it is granted no formal powers under the constitution. For a more detailed account of China’s governmental structure as it operates in practice, see Saich, supra. 30 Hsin-chi Kuan, “New Departures in China’s Constitution,” Studies in Comparative Communism, Vol. XVII, no. 1, Spring 1984, 53, 58-59. According to Kuan, a key goal of the 1982 Constitution was to strengthen the NPC: “(t)he traditional balance of power, overconcentrated in the Party, is to be redressed in favor of the supreme organ of the state, the National People’s Congress.” 31 For an optimistic assessment on the progress of NPC institutional reforms, see Michael William Dowdle, “Of Parliaments, Pragmatism, and the Dynamics of Constitutional Development: The Curious Case of China,” 35 NYUJILP 1 (2002). According to Dowdle, “analyses of the developmental potential of China’s present constitutional system still generally dismiss the constitutionalist implications of the NPC’s development.” Ibid., at 6. 32 As one scholar has noted, the Chinese constitution is “a formalization of existing power configurations rather than an authentic institutional framework for adjusting relations between the political forces that compete for power in a dynamic relationship.” Cohen, “China’s Changing Constitution,” Harvard Law School Studies in East Asian Law, China: no. 27, p. 837
and the local people's congresses."33 Article 3 states that all state organs operate under the principle of democratic centralism,and that"all administrative,judicial,and procutorial organs of the state are created by the people's congresses to which they are responsible and under whose supervision they operate.34 The formal grant of authority to the NPC as the highest organ of state power is reiterated in Article 57 of the constitution.Its constitutionally-enumerated powers are many,and include the power to amend the constitution,to supervise the enforcement of the constitution,35 to elect the President and Vice-President of the People's Republic,and to elect the President of the Supreme People's Court.The Standing Committee of the NPC (NPCSC)has the power to "interpret the constitution,"and it too has the power to supervise constitutional enforcement.It also has significant legislative authority,and can also issue interpretations of statutes.37 Also relevant is the NPCSC's authority to annul administrative regulations and local laws and regulations that violate the constitution.38 Although the similarities between the 1982 Constitution and the 1936 Soviet constitution are central to an understanding of the document as a whole,there are also important differences.Taken as a whole,these differences indicate an evolving-and,as of this writing,incomplete-institutional sense of the nature and purpose of the Chinese constitution.Perhaps the most prominent example of the changed approach can be found in the 1982 Constitution's emphasis on the rule of law,found in Article 5.Whereas the 1956 Constitution emphasized only the people's dictatorship (Article 1)and the organization of the state according to the theory of democratic centralism(Article 2),the 1982 Constitution states that China "practices ruling the country in accordance with the law"and that"(t)he state upholds the uniformity and dignity of the socialist legal system."39 In an even greater departure from traditional Soviet theory and practice,the 1982 Constitution acknowledges the supremacy of the constitution,affirms that all entities, both governmental and non-governmental,are bound by the constitution,and also arguably acknowledges the possibility of unconstitutional action by governmental actors in Article 5(3),which states that"(n)o law or...regulation shall contravene the constitution."As noted above,traditional communist legal theory argues that the state,as the embodiment of the people,cannot act in a manner contrary to their interests,and the 33 Constitution of the People's Republic of China,Arts.2(1)and(2). 34 Ibid.,Arts 3(1)and(3).The authority of local people's congresses over local courts is reiterated in Article 128 of the constitution;this dynamic arguably does more than any other single provision to structurally limit judicial independence in China. Article 62(2). 3 Arts.67(1)and (2). 37Arts.672),(3),and(4 38Arts.67(7)and(8)- 39 1982 Constitution,Article 5. 12
12 and the local people’s congresses.”33 Article 3 states that all state organs operate under the principle of democratic centralism, and that “all administrative, judicial, and procutorial organs of the state are created by the people’s congresses to which they are responsible and under whose supervision they operate.”34 The formal grant of authority to the NPC as the highest organ of state power is reiterated in Article 57 of the constitution. Its constitutionally-enumerated powers are many, and include the power to amend the constitution, to supervise the enforcement of the constitution,35 to elect the President and Vice-President of the People’s Republic, and to elect the President of the Supreme People’s Court. The Standing Committee of the NPC (NPCSC) has the power to “interpret the constitution,” and it too has the power to supervise constitutional enforcement.36 It also has significant legislative authority, and can also issue interpretations of statutes.37 Also relevant is the NPCSC’s authority to annul administrative regulations and local laws and regulations that violate the constitution.38 Although the similarities between the 1982 Constitution and the 1936 Soviet constitution are central to an understanding of the document as a whole, there are also important differences. Taken as a whole, these differences indicate an evolving – and, as of this writing, incomplete – institutional sense of the nature and purpose of the Chinese constitution. Perhaps the most prominent example of the changed approach can be found in the 1982 Constitution’s emphasis on the rule of law, found in Article 5. Whereas the 1956 Constitution emphasized only the people’s dictatorship (Article 1) and the organization of the state according to the theory of democratic centralism (Article 2), the 1982 Constitution states that China “practices ruling the country in accordance with the law” and that “(t)he state upholds the uniformity and dignity of the socialist legal system.”39 In an even greater departure from traditional Soviet theory and practice, the 1982 Constitution acknowledges the supremacy of the constitution, affirms that all entities, both governmental and non-governmental, are bound by the constitution, and also arguably acknowledges the possibility of unconstitutional action by governmental actors in Article 5(3), which states that “(n)o law or… regulation shall contravene the constitution.” As noted above, traditional communist legal theory argues that the state, as the embodiment of the people, cannot act in a manner contrary to their interests, and the 33 Constitution of the People’s Republic of China, Arts. 2(1) and (2). 34 Ibid., Arts 3(1) and (3). The authority of local people’s congresses over local courts is reiterated in Article 128 of the constitution; this dynamic arguably does more than any other single provision to structurally limit judicial independence in China. 35 Article 62(2). 36 Arts. 67(1) and (2). 37 Arts. 67(2), (3), and (4). 38 Arts. 67(7) and (8). 39 1982 Constitution, Article 5
possibility of government action that would violate individual constitutional rights is not recognized.40 The one major innovation that was seriously contemplated by the drafters of the 1982 Constitution but not finally enacted was the creation of some sort of constitutional review organ.During the constitutional drafting process,a number of different mechanisms were debated,and,in the end,the drafting committee voted in favor of the creation of a constitutional committee.The idea was eventually rejected,but its adoption by the constitution's initial drafters does indicate a sensitivity,especially in the wake of the Cultural Revolution,to the need for actual mechanisms that would enforce constitutional norms.More importantly,perhaps,it demonstrates a willingness,even at the highest levels of government,to experiment with legal forms that seem to contradict the orthodox theory.The ultimate failure of the proposal,however,demonstrates the lingering appeal of the orthodox theory's approach to individual rights,as well as the Communist Party's 1 unwillingness to embrace legal institutions that might significantly limit its own power. As of this writing,there are no known instances of the NPCSC using its constitutional authority to interpret the constitution.Rather than serving as real and substantive limits on state power,constitutional rights provisions are seen as statements of principle which the NPC can make concrete by legislative enactment.42 As discussed above,state-led constitutional reforms have generally focused on making the constitutionally mandated allocation of powers,including the allocation of significant powers to the NPC and the NPCSC,more of a concrete reality.The Chinese government took a first step toward both formalizing and mechanizing the NPC's authority with the passage of the Legislation Law in 2000. 40 Vyshinsky:also cite to discussion elsewhere in the article.Some commentators have also emphasized that the 1982 Constitution's more prominent placement of the section on fundamental rights and duties-it is the second section in the 1982 Constitution:the 1954 Constitution places fundamental rights and duties third-is an implicit statement of greater government emphasis on the importance of individual rights.Hu Jinguang,Research Reports on Constitutional Development of China,p.29. 41 As one scholar has pointed out,the rejection of a number of different proposals for constitutional enforcement mechanisms"demonstrates that the Chinese leadership is still not prepared to take a review of constitutionality seriously."Hsin-chi Kuan,"New Departures in China's Constitution,"Studies in Comparative Communism,Vol.XVII,no.1,Spring 1984,53-68,65. 42 In fact,in the late 1980s,the government was moving toward legislation that would give legal substance to certain provisions,including basic civil and political rights protections,but the protests of Spring 1989 meant that these initiatives were left in the dust.Liberal leader Zhao Ziyang,who would be stripped of all of his Party and government posts in the wake of the protests,was one of the leading advocates for the creation of rights-implementing legislation: In his opening speech to the(13Party Congress in October 1987),Zhao said that the government should"guarantee the citizens'rights and freedoms as stipulated in the constitution"and enact laws governing the press and publications,association and assembly,and freedom of belief. Discussion and drafting of these proposed laws were reportedly well under way by the end of 1988. Ann Kent,"Waiting for Rights:China's Human Rights and China's Constitutions,1949-1989,Human Rights Quarterly 13(1991),170,190. 13
13 possibility of government action that would violate individual constitutional rights is not recognized.40 The one major innovation that was seriously contemplated by the drafters of the 1982 Constitution but not finally enacted was the creation of some sort of constitutional review organ. During the constitutional drafting process, a number of different mechanisms were debated, and, in the end, the drafting committee voted in favor of the creation of a constitutional committee. The idea was eventually rejected, but its adoption by the constitution’s initial drafters does indicate a sensitivity, especially in the wake of the Cultural Revolution, to the need for actual mechanisms that would enforce constitutional norms. More importantly, perhaps, it demonstrates a willingness, even at the highest levels of government, to experiment with legal forms that seem to contradict the orthodox theory. The ultimate failure of the proposal, however, demonstrates the lingering appeal of the orthodox theory’s approach to individual rights, as well as the Communist Party’s unwillingness to embrace legal institutions that might significantly limit its own power.41 As of this writing, there are no known instances of the NPCSC using its constitutional authority to interpret the constitution. Rather than serving as real and substantive limits on state power, constitutional rights provisions are seen as statements of principle which the NPC can make concrete by legislative enactment.42 As discussed above, state-led constitutional reforms have generally focused on making the constitutionally mandated allocation of powers, including the allocation of significant powers to the NPC and the NPCSC, more of a concrete reality. The Chinese government took a first step toward both formalizing and mechanizing the NPC’s authority with the passage of the Legislation Law in 2000. 40 Vyshinsky; also cite to discussion elsewhere in the article. Some commentators have also emphasized that the 1982 Constitution’s more prominent placement of the section on fundamental rights and duties – it is the second section in the 1982 Constitution; the 1954 Constitution places fundamental rights and duties third – is an implicit statement of greater government emphasis on the importance of individual rights. Hu Jinguang, Research Reports on Constitutional Development of China, p. 29. 41 As one scholar has pointed out, the rejection of a number of different proposals for constitutional enforcement mechanisms “demonstrates that the Chinese leadership is still not prepared to take a review of constitutionality seriously.” Hsin-chi Kuan, “New Departures in China’s Constitution,” Studies in Comparative Communism, Vol. XVII, no. 1, Spring 1984, 53-68, 65. 42 In fact, in the late 1980s, the government was moving toward legislation that would give legal substance to certain provisions, including basic civil and political rights protections, but the protests of Spring 1989 meant that these initiatives were left in the dust. Liberal leader Zhao Ziyang, who would be stripped of all of his Party and government posts in the wake of the protests, was one of the leading advocates for the creation of rights-implementing legislation: In his opening speech to the (13th Party Congress in October 1987), Zhao said that the government should “guarantee the citizens’ rights and freedoms as stipulated in the constitution” and enact laws governing the press and publications, association and assembly, and freedom of belief. Discussion and drafting of these proposed laws were reportedly well under way by the end of 1988. Ann Kent, “Waiting for Rights: China’s Human Rights and China’s Constitutions, 1949-1989, Human Rights Quarterly 13 (1991), 170, 190